International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
December 7 , 2004
©2004 American Society of International Law
(Educational copying is permitted with due acknowledgment)
JUDICIAL AND SIMILAR PROCEEDINGS
JUDICIAL AND RELATED DOCUMENTS
International Court of Justice (ICJ): Legality of Use of Force (Serbia and Montenegro v. Portugal, United Kingdom, Netherlands, Italy, Germany, Canada, France, Belgium) (December 15, 2004)
The ICJ (“the Court”) unanimously concluded that it had no jurisdiction to adjudicate the claims made in the applications filed by Serbia and Montenegro against Portugal, the United Kingdom, the Netherlands, Italy, Germany, France, Canada, and Belgium.
On April 29, 1999 Serbia and Montenegro filed a claim against eight of the NATO countries that had participated in the 1999 bombing campaign against the former Yugoslavia. The Application had originally requested proceedings against Spain and the United States, but those requests were dismissed by the Court for manifest lack of jurisdiction. (Click here for the decision dismissing the application against the United States; Click here for the decision dismissing the application against Spain.)
In its Application, Serbia and Montenegro asserted, inter alia, that each of those states had violated “its international obligation banning the use of force against another State, the obligation not to intervene in the internal affairs of another State, and the obligation not to violate the sovereignty of another State.”
Serbia and Montenegro invoked Article 36 (2) of the Statute of the International Court of Justice (“the Statute”) and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention”) as a basis for jurisdiction. The Court noted that whether the Applicant is a state party to the ICJ Statute is “fundamental,” and that only if the conditions of Articles 34 and 35 of the Statute were met could it examine the issues relating to jurisdiction pursuant to Articles 36 and 37 of the Statute.
Article 35 (1) of the Statute reads: “The Court shall be open to the states parties to the present Statute.” The Court had to resolve the issue of whether the Applicant was a member of the United Nations at the time the proceedings were initiated. In the examination of this question, the Court reiterated some of the events that relate to the legal position of the Applicant vis-à-vis the United Nations, inter alia, a note from Yugoslavia to the United Nations in which Yugoslavia asserted to continue the legal personality of the Socialist Federal Republic of Yugoslavia, including the membership in the United Nations. The Court also referred to Security Council resolution 757 (1992), in which it was held that this claim of Yugoslavia had “not been generally accepted.” Furthermore, the Court cited Security Council Resolution 777 (1992), in which it was recommended to the General Assembly that it decide that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and the resolution of the General Assembly (47/1), in which these recommendations were adopted. The Court concludes that the legal status of the Federal Republic of Yugoslavia vis-à-vis the United Nations between 1992 and 2000 “remained ambiguous and open to different assessments,” and that this “sui generis” situation came to an end on November 1, 2000, when the request of the Federal Republic of Yugoslavia for admission to the United Nations was granted. Finally, the Court concluded that at the relevant time of the request of the proceedings, the Federal Republic of Yugoslavia was not a Member of the United Nations and that its admission to it could not have the “effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up.” It followed from this that Serbia and Montenegro did not have standing before the ICJ under Article 35 (1) of the Statute.
It then considered whether it could be open to Serbia and Montenegro under Article 35 (2), which provides: “The conditions under which the Court shall be open to other States shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.”
The Court then analyzed the question of whether “treaties in force” related to treaties in force at the time the proceedings were initiated, or whether the treaty had to be in force at the time the Statute entered into force. It cited its 1993 Order in the Genocide Convention case, where it found that a “compromissory clause in a multilateral convention, such as Article IX of the Genocide Convention...could, in the view of the Court, be regarded prima facie as a special provision contained in a treaty in force.” It noted that this determination had been made in the context of incidental proceedings and that it would be appropriate to make a definitive finding on this question. Finding that the words “treaties in force” do not in the natural and ordinary meaning indicate at what date the treaties contemplated are to be in force, the Court found that it would have been “inconsistent with the main thrust of the text to make it possible in the future for States not parties to the Statute to obtain access to the Court simply by the conclusion between themselves of a special treaty.”
In some cases, Serbia and Montenegro asserted additional bases for jurisdiction, such as Article 4 of the Convention of Conciliation, Judicial Settlement and Arbitration between the Kingdom of Yugoslavia and Belgium, which entered into force on September 3, 1930. This treaty was undisputedly in force when the Statute entered into force. However, this treaty was not referring to the ICJ, but to its predecessor, the Permanent Court of International Justice (PCIJ). Such matters of transfer of jurisdiction from the PCIJ to the ICJ were, in the view of the court, not governed by Article 35 of the Statute, but rather, governed by Article 37 of the Statute. It found that as Article 37 of the Statute only applies to States parties to the Statute, and since Serbia and Montenegro were not parties to the Statute at the relevant time, there was no basis for jurisdiction under Article 4 of the Convention of Conciliation, Judicial Settlement and Arbitration between the Kingdom of Yugoslavia and Belgium.
Click here for the decision.
Click here for the ASIL Insight.
International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber: Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana (December 13, 2004)
The Appeals Chamber of the ICTR upheld the convictions and sentences of Elizaphan Ntakirutimana and his son, Dr. Gérard Ntakirutimana. Elizaphan Ntakirutimana was a pastor and president of the West Rwanda Association of the Seventh Day Adventist Church in during the period of April to July 1994. Gérard Ntakirutimana was a medical doctor at the Seventh Day Adventist’s hospital at Mugonero Complex, Rwanda during the same period.
The main allegations against the accused, “the Mugonero” and “the Bisesero” indictments, were as follows:
In April 1994, a large number of armed individuals, including Elizaphan Ntakirutimana and Gérard Ntakirutimana arrived in a convoy and participated in an attack on persons seeking refuge in the Mugonero complex. The attack resulted in hundreds of deaths of children, women and men, and a large number of wounded. Following the attack, Elizaphan Ntakirutimana, Gérard Ntakirutimana and others sought after Tutsi survivors and attacked them, killing and causing serious bodily or mental harm to them. The indictment also stated that Gérard Ntakirutimana “procured ammunition and gendarmes for the attack on the Complex” and “killed Charles Ukobizaba by shooting him in the chest, from a short distance, in Mugonero Hospital courtyard around midday on 16 April 1994.” Many of those who survived the massacre at Mugonero Complex fled to the surrounding areas, one of which was the area known as Bisesero. From April through June 1994, convoys of a large number of individuals armed with various weapons went to the area of Bisesero and conducted further attacks and killings. Individuals in the convoy included, among others, Elizaphan Ntakirutimana and Gérard Ntakirutimana.
The Trial Chamber concluded that Gérard Ntakirutimana had the requisite intent for genocide and, in the case of the killing of Ukobizaba, Gérard Ntakirutimana was “individually criminally responsible” for his death and therefore was guilty of genocide. The killing of Ukobizaba was also the basis for the conclusion that Gérard Ntakirutimana was guilty of murder as a crime against humanity. Gérard Ntakirutimana was therefore found guilty of genocide at Mugonero because of acts committed by him personally, namely the killing of Ukobizaba and the procurement of ammunition and gendarmes. Similarly, Elizaphan Ntakirutimana was pronounced guilty of genocide because the Trial Chamber found that he “conveyed armed attackers to the Mugonero Complex in his vehicle on the morning of 16 April 1994.”
The Trial Chamber found Elizaphan Ntakirutimana guilty of genocide and sentenced him to ten years’ imprisonment with credit for time spent in custody awaiting trial. Gérard Ntakirutimana was found guilty of genocide and of murder as a crime against humanity. The Trial Chamber sentenced Gérard Ntakirutimana to 25 years’ imprisonment with credit for time spent in custody awaiting trial. The Appellants appealed from all of the factual findings of the Trial Chamber against them and alleged several legal errors.
The appellants’ principal contentions before the Appeals Chamber were that the Indictments did not set forth the material facts with enough detail to inform them clearly of the charges against them and therefore impaired their ability to prepare their defense. In this regard the Appeals Chamber found that the indictment concerning the Mugonero complex did not state Ukobizaba’s name or any of the circumstances surrounding his killing that were eventually found in the judgment. It also found that the Prosecution was in a position to plead specific material facts regarding Ukobizaba’s killing in the Mugonero Indictment, yet it failed to do so. The Appeals Chamber found that this failure rendered the counts of genocide and crimes against humanity (murder) against Gérard Ntakirutimana defective.
The Appeals Chamber affirmed Gérard Ntakirutimana’s conviction for genocide in relation to events which occurred at Bisesero, but found that his responsibility was that of an aider and abettor. However, the Appeals Chamber quashed Gérard Ntakirutimana’s conviction for murder as a crime against humanity under the Bisesero Indictment.
The Appeals Chamber also found that the Trial Chamber erred in law in considering that an element of the crime of extermination is that the victims must be “named or described persons.” It concluded that in carrying out the acts supporting his conviction for genocide and aiding and abetting genocide, Gérard Ntakirutimana knew that the intention of the other participants was the extermination of the Tutsi refugees and that by his conduct, he was making a substantial contribution to the mass killing of the Tutsi that occurred at Gitwe Hill, Mubuga Hill and at the Mugonero Complex. Therefore, it found that Gérard Ntakirutimana incurred individual criminal responsibility for aiding and abetting extermination of the Tutsi as a crime against humanity.
The Appeals Chamber affirmed the conviction of Elizaphan Ntakirutimana for aiding and abetting genocide and entered a conviction for aiding and abetting extermination as a crime against humanity. It reversed his acquittal for events which occurred in Bisesero, finding that the Prosecution did not provide clear, consistent or timely information relating to the allegation of these attacks, and that the appellant was, in fact, prejudiced by lack of notice.
The Appeals Chamber found that the Trial Chamber’s finding that the appellants’ had the requisite intent to commit genocide was undisturbed despite the quashing of a number of convictions.
Click here for the decision. Click here for EISIL resources on International Criminal Law.
International Criminal Tribunal for the Former Yugoslavia (ICTY)(Appeals Chamber): Prosecutor v. Dario Kordic and Mario Cerkez (December 17, 2004)
The Appeals Chamber of the ICTY affirmed that Kordic “as the responsible regional politician planned and instigated the crimes which occurred in Ahmici on 16 April 1993” and upheld his sentence of 25 years. Allowing most of the grounds of Cerkez’s appeal, the Appeals Chamber reduced the sentence from 15 to six years’ of imprisonment. Cerkez had been released from prison pursuant to an order of the court on December 2, 2004, because the new sentence determined by the Appeals Chamber was higher than the time Cerkez had already spent in the United Nations Detention Unit.
The Appeals Chamber furthermore affirmed the findings of the Trial Chamber that “Croatia exercised overall control” over the Croatian Defense Council (HVO)” and “provided leadership, coordination and organization of the HVO and that there was an international armed conflict between Croatia and Bosnia and Herzegovina.”
The appeal relates to the conflict between the HVO and the Bosnian Muslim Army (ABiH) in the Lasva Valley region of Central Bosnia from 1992 to 1993. The most serious incident in this case concerns the massacre that was committed in the village of Ahmici in April of 1993 against Bosnian Muslims. Cerkez and Kordic, both Bosnian Croats, played an important role in the conflict in the Central Bosnian region. Kordic was an important political figure, serving as the President of the Croatian Democratic Union of Bosnia and Herzegovina in the Municipality of Busovaca in 1991, as Vice-President of the Presidency of the Croatian Community of Herceg-Bosna after November 1991, and finally as Vice-President of the Croatian Republic of Herceg-Bosna from August 1993. Cerkez was a military commander of the Viteska Brigade of the HVO.
The Trial Chamber convicted Kordic pursuant to Article 7 (1) Statute of the International Criminal Tribunal for the Former Yugoslavia (“the Statute”), for planning, instigating and ordering including persecutions, unlawful attack on civilians and civilian objects, murder, inhumane acts, imprisonment, wanton destruction not justified by military necessity, plunder, and destruction or willful damage to institutions dedicated to religion or education. The Trial Chamber found that Kordic played an instrumental part in ordering the attack on Ahmici in April 1993, while it acquitted Cerkez of the charges with respect to the crimes he allegedly committed in Ahmici.
Cerkez was convicted pursuant to Article 7(1) of the Statute for committing persecutions, and pursuant to both Article 7 (1) and Article 7 (3) of the Statute for crimes including unlawful attack on civilians and civilians objects, murder, inhumane acts, imprisonment, taking civilians as hostages, wanton destruction not justified by military necessity, plunder, and destruction or willful damage to institutions dedicated to religion or education.
On appeal, Kordic contended, inter alia, that he did not receive a fair trial, that the Trial Chamber erred in finding that the Muslim-Croat conflict in Central Bosnia was a unilateral Bosnian-Croat campaign of persecution, that he did not have responsibility for the events in Ahmici and elsewhere, and that no armed conflict existed prior to mid-April 1993.
Cerkez submitted on appeal, inter alia, that the Trial Chamber erroneously convicted him on the basis of Article 7 (3) of the Statute and that the Trial Chamber erred in the application of material law as a result of erroneous factual findings.
The Prosecution, inter alia, appealed Cerkez’s acquittal for crimes committed in Ahmici.
With respect to Kordic’s criminal responsibility in the massacre of Ahmici, the Appellate Chamber found that a reasonable trier of fact could have concluded that there was a meeting of the Bosnian Croat leadership at which Kordic was present and during which the decision was taken to attack the Muslims in the Ahmici village and other Lasva Valley villages. Furthermore, the Appellate Chamber determined that a reasonable trier of fact could have concluded that there was an order aimed at killing “all Muslim men of military age, to expel civilians and to set houses on fire, and that this order was approved at the meeting of the political leadership, which was attended by Kordic.” The Appeals Chamber confirmed the Trial Chamber as to the finding of persecutions and concluded that based on the evidence “concerning Kordic’s political activities and inclinations, his strongly nationalist and ethnical stance, and his desire to attain the sovereign Croatian state within the territory of Bosnia and Herzegovina at seemingly any cost, Kordic possessed the specific intent to discriminate required for the crime of persecutions.”
Kordic and Cerkez also challenged on appeal the Trial Chamber’s finding that there existed an international armed conflict during the indictment period. They contended that they should not have been found guilty of grave breaches of the Geneva Conventions of 1949 pursuant to Article 2 of the Statute. The Appeals Chamber confirmed the Trial Chamber in its finding of an international armed conflict as well as in the application of the “overall control” test. According to this test, which was promulgated by the ICTY in the Tadic Appeal Judgment, an armed conflict “becomes international when a foreign state exercises overall control over the military forces of one of the belligerents.” Consequently the court rejected the appeal of Kordic and Cerkez.
Some of Kordic’s appeals were granted, however only with respect to crimes allegedly committed in certain locations and never in relation to such counts in their entirety. Thus, Kordic’s sentence was not reduced.
In terms of Cerkez’s responsibility in the crimes committed in Ahmici, the Appellate Chamber confirmed the findings of the Trial Chamber that there was insufficient evidence to establish Cerkez’s responsibility for the crimes. Overturning most of his convictions, the Appeals Chamber found Cerkez guilty of Article 7 (1) of the Statute for persecutions, imprisonment and unlawful confinement of civilians with respect to incidents at the Vitez Cinema and the SDK building.
Regarding the mens rea requirement pursuant to Article 7(1) of the Statute, the Appeals Chamber observed that “a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.”
The Appeals Chamber further concluded that “the provisions of Article 7(1) and Article 7 (3) of the Statute connote distinct categories of criminal responsibility” and “that, in relation to a particular count, it is not appropriate to convict under both Article 7 (1) and Article 7 (3) of the Statute.” “[W]here the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7 (1) only, and consider the accused’s superior position as an aggravating factor in sentencing.”
With respect to unlawful attacks against civilians and civilian objects under Article 3 of the Statute, the Appeals Chamber also discussed the question of whether there need be a result of an attack such as death and/or serious bodily injury in order for a conviction to be entered. The Appeals Chamber noted that none of the sources of customary international law required a particular result. However, the Appeals Chamber concluded that, at least for the time period relevant to this decision, no criminal responsibility could attach without the causation of death, serious injury to body or health or results listed in Article 3 of the Statute.
Click here for the decision.
Click here for EISIL resources on International Criminal Law.
The International Tribunal for the Law of the Sea (ITLOS): The “Juno Trader” Case (Saint Vincent and the Grenadines v. Guinea-Bissau) Application for Prompt Release (December 18, 2004)
The Tribunal ordered the prompt release of the “Juno Trader,” a fishing vessel, upon the posting of a bond of EUR 300,000.
The Juno Trader is a refrigerated cargo vessel registered in Saint Vincent and the Grenadines and flying its flag. Its owner is Juno Reefers Limited, incorporated in the British Virgin Islands. The Master of the Juno Trader is a Russian national. The parties differed as to the facts underlying the dispute. According to Saint Vincent and the Grenadines (“the Applicant”), in late September, the Juno Trader received a transhipment in Mauritanian waters of frozen fish and fish meal from its sister ship, the Juno Warrior, which was operating under a Mauritanian license in the exclusive economic zone (“EEZ”) of Mauritania. The transhipment was confirmed by Mauritanian authorities. After completing the transhipment, the Juno Trader left Mauritania for Ghana, where it set out to discharge its cargo. According to the Application, on September 26, 2004, the Juno Trader crossed into the EEZ of Guinea-Bissau at a distance of 40 miles from the coast. A few hours later, a zodiac from Guinea-Bissau appeared and began shooting at its vessel, injuring one of its crew members. According to Guinea-Bissau (“the Respondent”), that same day its vessel, Cacine, was performing routine control and surveillance operations in the EEZ of Guinea-Bissau when it detected a reefer vessel whose presence in the EEZ of Guinea-Bissau was unknown and undeclared. According to the fishing infraction later issued by the Respondent, the Juno Trader was fishing illegally and fled upon spotting Guinea-Bissau’s inspection vessel. The Respondent further asserted that the Juno Trader repeatedly disobeyed the zodiac’s signals to cut its engines and to allow the boarding of an inspection team. Later that evening, the Juno Trader was boarded by officers of the Fisheries Inspection Service of Guinea-Bissau, and was subsequently detained along with its master and crew. In early October, an inspection team from the National Fisheries Inspection and Control Service of Guinea-Bissau inspected the cargo on board the Juno Trader and tested samples of its fish. The inspection report concluded that most of the species of fish found were those found in Guinea-Bissau waters. Later, the Interministerial Maritime Control Commission (“IMCC”) met and adopted a decision in which it imposed a fine of EUR 175,398 on the Juno Trader in addition to EUR 8,770 on its captain. It also declared as reverted to the State of Guinea-Bissau all the catch found on board the arrested vessel, considering it to have been caught and transhipped in the maritime waters of Guinea-Bissau, without authorization. In November 2004, the owners of the Juno Trader paid the Government of Guinea-Bissau EUR 50,000 in return for the release from arrest and detention of the Juno Trader and its crew. Later that month, a regional court of Guinea-Bissau, upon application by the owner of the Juno Trader, ordered the immediate suspension of the IMCC’s order and further annulled any procedure aimed at selling the fish on board the Juno Trader. It also ordered the immediate lifting of the prohibition imposed on the members of the Juno Trader crew from leaving the Port of Bissau, and the immediate return of their passports. The Fisheries Commission of Guinea-Bissau nevertheless sent a letter to the owner of the Juno Trader stating that the ownership of the Juno Trader had reverted to the State of Guinea-Bissau with effect from November 5, 2004 for failure to pay the fine imposed by the decision of the Interministerial Fisheries Control Committee of October 19, 2004.
Saint Vincent and the Grenadines applied to ITLOS under Article 292 of the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”), requesting that the Tribunal find that Guinea-Bissau violated Article 73, paragraph 2 of UNCLOS due to the conditions it set for the release from detention of the Juno Trader and the release of 19 members of its crew. It further requested, inter alia, that the Tribunal order Guinea-Bissau to release the Juno Trader and its crew from detention without the requirement that Saint Vincent and the Grenadines post a bond. The Tribunal noted that Guinea-Bissau had not asked for a bond from Saint Vincent and the Grenadines, nor did it react when the Juno Trader’s shipowner posted a bond, or even inform Saint Vincent and the Grenadines that it found the amount of the bond posted insufficient. It also observed that the Juno Trader continued to be detained in the port of Bissau and that Saint Vincent and the Grenadines had not withdrawn its request concerning the release of the crew.
For the reasons above, the Tribunal found that Guinea-Bissau was in violation of Article 73, paragraph 2 of UNCLOS, and ordered it to release promptly the Juno Trader, including its cargo and crew. In considering the amount of the bond to be posted, the Tribunal referred to the “Camouco” Case and the “Monte Confurco” Case. The Tribunal first weighed the gravity of the alleged offences by Saint Vincent and the Grenadines, and considered the amount of penalties already imposed on the Juno Trader by Guinea-Bissau (EUR 175,398, in addition to EUR 8,770 on the Master). It also considered the value of the Juno Trader vessel which, according to Guinea-Bissau, was US$800,000, and according to Saint Vincent and the Grenadines, was US$460,000. The Tribunal then determined that the bond would be in the amount of EUR 300,000.
Click here for the decision.