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PART I. SUBJECT-MATTER JURISDICTION OF THE AD HOC TRIBUNALS AND APPLICABLE LAW
General Remarks -- The Creation and Jurisdiction of the ad hoc Tribunals = 3
Subject-Matter Jurisdiction and App...
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PART I. SUBJECT-MATTER JURISDICTION OF THE AD HOC TRIBUNALS AND APPLICABLE LAW
General Remarks -- The Creation and Jurisdiction of the ad hoc Tribunals = 3
Subject-Matter Jurisdiction and Applicable Law -- Customary International Law and Treaty Law? = 5
ICTY = 5
ICTR = 10
Identifying Customary International Law and the Role of Judges in the Customary Process = 13
Binding Precedents and Internal Jurisprudential Hierarchy = 19
PART II. SERIOUS VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR: `WAR CRIMES'
War Crimes in the Statutes of the ad hoc Tribunals = 23
War crimes in the Statute of the ICTY = 24
War crimes in the Statute of the ICTR = 27
Chapeau Elements of War Crimes = 29
General remarks = 29
Existence of an armed conflict and nexus therewith = 30
Existence of an armed conflict = 30
Nexus between the crime and the armed conflict = 38
Other jurisdictional requirements = 47
Infringement of a rule of international humanitarian law = 48
Customary or conventional nature of the rule = 49
`Serious' nature of the infringement = 50
Individual criminal responsibility = 51
Grave Breaches of the 1949 Geneva Conventions = 54
Grave breaches of the Geneva Conventions as war crimes = 54
General elements of grave breaches = 55
`International' armed conflicts and state of occupation = 55
`Protected persons' and `protected property' -- the status of the victim = 64
Underlying offences = 71
Other Serious Violations of the Laws or Customs of War: Underlying Offences = 90
Employment of poisonous weapons or other weapons calculated to cause unnecessary suffering (Article 3(a) ICTY Statute) = 91
Wanton destruction of cities, towns, or villages, or devastation not justified by military necessity (Article 3(b) ICTY Statute) = 91
Attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings (Article 3(c) ICTY Statute) = 94
Seizure of, destruction or wilful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments, and works of art and science (Article 3(d) ICTY Statute) = 94
Plunder of public or private property (Article 3(e) ICTY Statute) and pillage (Article 4(f) ICTR Statute) = 96
Violence to life and person (Article 4(a) ICTR Statute and Article 3 ICTY Statute generally) = 99
Collective punishment (Article 4(b) ICTR Statute) = 100
Taking of hostages (Article 4(c) ICTR Statute and Article 3 ICTY Statute generally) = 100
Acts of terrorism (Article 4(d) ICTR Statute) = 101
Outrages upon personal dignity (Article 4(e) ICTR Statute and Article 3 ICTY Statute generally) = 101
The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples = 103
Threats to commit statutory war crimes pursuant to Article 4 of the ICTR Statute = 103
Other war crimes within the Tribunals' jurisdiction ratione materiae = 103
Murder = 104
Rape = 107
Torture = 110
Cruel treatment = 116
Slavery = 118
Attacks on civilians and civilian objects = 119
Unlawful labour = 126
Unlawful infliction of terror upon civilians or `terror' = 127
War Crimes in Internal Armed Conflicts = 130
Can war crimes be committed in internal armed conflicts? = 130
Serious violations of common Article 3 of the Geneva Conventions = 132
Common Article 3 in the Statutes of the ad hoc Tribunals = 132
The protection guaranteed by common Article 3 = 134
Serious violations of Additional Protocol II and the Statutes of the ad hoc Tribunals = 138
Additional Protocol II in the Statutes of the ad hoc Tribunals = 138
Status of Additional Protocol II under customary international law and relationship with common Article 3 of the Geneva Conventions = 139
Role of Additional Protocol II in the jurisprudence of the ad hoc Tribunals = 144
PART III. CRIMES AGAINST HUMANITY
Crimes against Humanity in the Statutes of the ad hoc Tribunals = 147
ICTY requirement: `Committed in armed conflict' = 148
ICTR requirement: `National, political, ethnic, racial, or religious discrimination' = 153
Chapeau Elements of Crimes against Humanity = 155
The `attack' = 156
Nexus between the acts of the accused and the attack = 161
`Any civilian population' as the primary object of the attack = 163
`Widespread or systematic' character of the attack = 170
Requisite state of mind or mens rea = 173
Underlying Offences = 175
Murder = 176
Extermination = 176
Enslavement = 179
Deportation and forcible transfer = 180
Imprisonment = 180
Torture = 181
Rape = 182
Persecutions on political, racial, or religious grounds = 182
Other inhumane acts = 188
PART IV. GENOCIDE
Genocide and International Criminal Tribunals = 193
The judgment of the International Military Tribunal in Nuremberg = 193
The contribution of the ad hoc Tribunals for the former Yugoslavia and for Rwanda to the law of genocide = 199
Genocide and the International Criminal Court = 202
General or Chapeau Elements of Genocide = 206
General remarks = 206
Elements of the genocidal mens rea = 208
Intent = 210
To destroy = 216
In whole or in part = 217
A protected group: a national, ethnic, racial, or religious group = 223
As such = 230
Establishing the genocidal mens rea = 233
Underlying Offences = 235
Killing members of the group = 236
Causing serious bodily or mental harm to members of the group = 237
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part = 238
Imposing measures intended to prevent births within the group = 242
Forcibly transferring children of the group to another group = 243
Exhaustive character of the list of underlying crimes? = 243
Genocide and other Forms of Criminal Involvement = 245
General remarks = 245
The various listed forms of criminal participation (Articles 4/2 (a-e) of the Statutes of the Tribunals = 246
Genocide = 246
Conspiracy to commit genocide = 252
Direct and public incitement to commit genocide = 254
Attempt to commit genocide = 257
Complicity in genocide = 257
Other forms of criminal participation? = 261
Command responsibility and genocide = 261
Joint criminal enterprise or common purpose doctrine and genocide = 264
PART V. PARTICIPATION IN INTERNATIONAL CRIMES AND INDIVIDUAL CRIMINAL RESPONSIBILITY
General Remarks on Participation = 269
Jurisdiction ratione personae and Applicable Law = 270
The Person of the Perpetrator: Who Can Commit an International Crime? = 272
Article 7(1) of the ICTY Statute and Article 6(1) of the ICTR Statute: `Direct' Participation = 279
Planning = 279
Instigating = 280
Ordering = 282
Committing = 283
Aiding and abetting in the planning, preparation, or execution = 284
Joint criminal enterprise or common purpose = 287
Attempt? = 293
Article 7(3) of the ICTY Statute and Article 6(3) of the ICTR Statute: Command or Superior Responsibility = 296
Principle of command responsibility = 296
Superior-subordinate relationship and `effective control' = 298
Knowledge requirement = 301
Failure to prevent and punish = 306
Convictions Under Articles 7(1) and 7(3) of the ICTY Statute and Articles 6(1) and 6(3) of the ICTR Statute = 311
PART VI. DISTINGUISHING GENOCIDE, WAR CRIMES, AND CRIMES AGAINST HUMANITY: CUMULATIVE CHARGING AND CUMULATIVE CONVICTIONS
Cumulative Charging and Cumulative Convictions = 315
War Crimes and Crimes against Humanity = 320
Existence of an armed conflict and the nexus between the acts of the accused and the armed conflict = 321
Persons protected under each regime = 321
Widespread or systematic attack upon a civilian population = 322
Underlying offences = 322
War Crimes and Genocide = 325
Common features = 325
Different protected interests = 325
Distinct material elements = 326
Genocide and Crimes against Humanity = 329
Common features and distinctions = 329
Genocide and persecution = 333
Genocide and extermination = 337
PART VII. SENTENCING INTERNATIONAL CRIMES
Applicable Law and Purposes of Sentencing = 343
Relevant Factors in Sentencing = 347
Gravity of the acts of the accused = 347
Mitigating and aggravating factors = 350
Totality principle and individualization of sentences = 355
Other Available Penalty: Return of Property = 358
Enforcement of Sentences = 359
PART VIII. CONCLUSIONS
Concluding Remarks = 363
Select Bibliography = 369
Annexes = 383
ICTY = 383
ICTR = 400
Index 429
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