Individual criminal responsibility

Notion(s)	Filing	Case
Judicial notice \| Existence of a plan or policy for genocide \| Individual criminal responsibility	Decision on Clarification - 08.12.2006	NAHIMANA et al. (Media case) (ICTR-99-52-A)
11. […] The Appeals Chamber […] stresses the need for a clear distinction between the issue of the existence of genocide in Rwanda in 1994, a fact judicially noticed by the Appeals Chamber in the Karemera Decision,[1] from the separate questions regarding the existence of a conspiracy to commit genocide between the three co-appellants in the present case, and the Appellant’s participation in such a conspiracy. The Appeals Chamber finds that there is nothing in the Appellant’s arguments to suggest that the judicially noticed facts in the Karemera Decision would prevent him either from challenging the existence of a conspiracy to commit genocide or from disputing his participation therein. The Karemera Decision is clear in that its direction to the Trial Chamber to take judicial notice of facts of common knowledge does not shift the ultimate burden of persuasion, which remains on the Prosecution,[2] with respect to the personal responsibility of each accused. It has been subsequently specified by the Appeals Chamber that with regard to the Karemera Decision, “taking of judicial notice of this fact does not imply the existence of a plan to commit genocide”.[3] Therefore, the Appeals Chamber, noting that the Appellant indeed challenges the Trial Chamber’s findings of conspiracy, both in his Notice of Appeal and in his Appeal Brief,[4] considers that he has failed to demonstrate how the Karemera Decision, if applicable to his case, could impact on his ability to dispute that “he was party to a plan to commit genocide”. 12. […] The Appeals Chamber, finding that the Appellant has failed to raise on appeal any argument challenging the occurrence of genocide, considers therefore that he has not shown how the judicially noticed facts in the Karemera Decision, if applicable to his case, could adversely affect his appeal. His request for clarification in this regard is therefore denied as unfounded. show footnotes [1] [The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006], para. 35. [2] [The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006], paras 30 and 42; see also Prosecutor v. Semanza, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 192. [3] [Edouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73(C), Decision on Motions for Reconsideration, 1 December 2006], para. 21. [4] Notice of Appeal, Ground 30 and Appeal Brief paras 243-249. Download full document		ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s)	Filing	Case
Judicial notice \| Individual criminal responsibility	Decision on Reconsideration - 01.12.2006	KAREMERA et al. (ICTR-98-44-AR73(C))
At para. 16, ICTR Appeals Chamber held: There is a significant difference between the taking of a judicial notice of a fact of genocide and the determination that an accused is individually criminally responsible for the crime of genocide. The former gives a factual context to the allegations of the crime of genocide. The latter requires a finding of whether the elements of the crimes of genocide, such as actus reus and mens rea, exist in order to ascertain whether an accused is responsible for the crime.” Consequently, the taking of judicial notice of genocide does not, in itself, go to the alleged conduct or acts of the Applicants as charged in the indictment.[1] show footnotes [1] Semanza Appeal Judgment, para.192 Download full document		ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s)	Filing	Case
War crimes \| Individual criminal responsibility \| Non-international armed conflict	Interlocutory Decision on Jurisdiction - 02.10.1995	TADIĆ Duško (IT-94-1-AR72)
134. […] [C]ustomary international law imposes criminal liability for serious violations of common Article 3 [of the Geneva Conventions of 1949], as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife. Download full document		ICTY Statute Article 3 Other instruments Geneva Convention: common Article 3.
Notion(s)	Filing	Case
Customary rules of international humanitarian law governing non-international armed conflicts \| Non-international armed conflict \| Wanton destruction not justified by military necessity \| Devastation not justified by military necessity \| Attacks on civilian objects \| Individual criminal responsibility	Decision on Motions for Acquittal - 11.03.2005	HADŽIHASANOVIĆ & KUBURA (IT-01-47-AR73.3)
29. The wanton destruction of cities, towns or villages, an offence articulated in Article 3(b) of the Statute, reflects the customary international law prohibition on unlawful attacks against civilian objects which is found in conventional and customary international law applying to situations of international and non-international armed conflicts. Because this conduct is prohibited in customary international law that applies in international and non-international armed conflict, the proof of occupied territory is not required. The elements of this offence have been enunciated in several cases before the Trial Chambers, but none has considered the international nature of the armed conflict to be an element.[1] Devastation not justified by military necessity, an offence articulated in Article 3(b) of the Statute, includes the customary international law prohibition that destruction of the property of an adversary is prohibited, unless required by imperative military necessity. This rule applies in international and non-international armed conflict.[2] 30. The Appeals Chamber is satisfied that the conventional prohibition on attacks on civilian objects in non-international armed conflicts has attained the status of customary international law and that this covers “wanton destruction of cities, towns or villages not justified by military necessity” in international and non-international armed conflict. The Appeals Chamber is further satisfied that violations of this provision entail, in customary international law, the individual criminal responsibility of the person breaching the rule. The ICRC notes that this prohibition is contained in numerous military manuals that are applicable in or have been applied in international and non-international armed conflict,[3] and numerous states have adopted legislation making it an offence to attack civilian objects during any armed conflict.[4] See also paras 26-28 where the Appeals Chamber discusses legal sources including those referred to in the impugned Trial Chamber decision. show footnotes [1] See, e.g., Prosecutor v. Kordić and Čerkez, IT-95-14-T, Judgement, 26 February 2001 […], para. 346 (holding the elements to be: (i) the destruction of property occurs on a large scale, (ii) the destruction is not justified by military necessity; and (iii) the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction); affirmed, Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Judgement, 17 December 2004, […], paras. 74-76. [2] This is a long-standing rule of international armed conflict. See Hague Regulations Article 23(g) (“In addition to the prohibitions provided by special Conventions, it is especially forbidden... [t]o destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war”). The ICRC study on customary international humanitarian law notes that “[t]his rule is included in military manuals which are applicable in or have been applied in non-international armed conflicts.” Jean-Marie Henckaerts and Louise Doswald-Beck (eds), ICRC Customary International Humanitarian Law, (Cambridge, 2005) (“ICRC Customary International Humanitarian Law”), vol. 1, page 28. There is an absolute prohibition on directing attacks against civilian objects, which may not be derogated from because of military necessity. See, e.g., Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Corrigendum to Judgement of 17 December 2004, page 2. [3] ICRC Customary International Humanitarian Law, vol. 1. pages 26 nn. 6-8, 28 nn. 21-22, 176 nn. 25-26, 177 nn. 30-31. [4] Ibid., page 28. Download full document		ICTY Statute Article 3(b)
Notion(s)	Filing	Case
Customary rules of international humanitarian law governing non-international armed conflicts \| Non-international armed conflict \| Plunder of public or private property \| Individual criminal responsibility	Decision on Motions for Acquittal - 11.03.2005	HADŽIHASANOVIĆ & KUBURA (IT-01-47-AR73.3)
37. […] The Appeals Chamber therefore finds that the customary international law rule embodied in Article 3(e) is applicable in all situations of armed conflict [international and non-international], and is not limited to occupied territory.[1] 38. The Appeals Chamber is satisfied that violations of the prohibition against “plunder of public or private property” under Rule 3(e) entail, under customary law, the individual criminal responsibility of the person breaching the rule. […] See also the omitted portions of paras 37-38 where the Appeals Chamber discusses legal sources. show footnotes [1] Kordić Appeals Judgement, para. 78 (“[t]he prohibition of plunder is general in its application and not limited to occupied territories only”). Download full document		ICTY Statute Article 3(e)
Notion(s)	Filing	Case
Customary rules of international humanitarian law governing non-international armed conflicts \| Non-international armed conflict \| Destruction or wilful damage done to institutions dedicated to religion \| Individual criminal responsibility	Decision on Motions for Acquittal - 11.03.2005	HADŽIHASANOVIĆ & KUBURA (IT-01-47-AR73.3)
47. The Appeals Chamber in the Tadić Jurisdiction Appeal found that the Article 3(d) prohibition against destruction or wilful damage to institutions dedicated to religion applied to both non-international and international armed conflict.[1] This Appeals Chamber affirms that conclusion. 48. The Appeals Chamber is satisfied that violations of the prohibition against “destruction or wilful damage done to institutions dedicated to religion” under Rule 3(d) entails, under customary law, the individual criminal responsibility of the person breaching the rule. […] See also the omitted portions of para. 48 where the Appeals Chamber discusses legal sources. show footnotes [1] Tadić Jurisdiction Decision, para. 86 (noting “this provision is based on the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, the Regulations annexed to that Convention, and the Nuremberg Tribunal's interpretation of those Regulations”); ibid., para. 87 (stating “the Hague Convention [is] considered qua customary law” applicable to international armed conflict); ibid., para. 98 (noting one rule of customary international law that applies to non-international armed conflict is Article 19 of the [1954] Hague Convention, which states that “[i]n the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property”, where respect for cultural property includes protection and safeguarding of “immovable property of great importance to the cultural heritage of every people, such as monuments of architecture... whether religious or secular”. See Articles 1, 2, 3, 4, and 19 1954 Hague Convention); ibid., para. 127 (noting the protection of cultural property as one of the “customary rules [that] have developed to govern internal strife”). Download full document		ICTY Statute Article 3(d)