Prosecution of war crimes

On 7 April 2009, Alberto Fujimori, president of Peru from 1990 to 2000, was found guilty of grave human rights violations and sentenced to 25 years in prison – the maximum penalty allowed by Peruvian law. The prosecution and conviction of Fujimori mark a watershed in efforts to achieve accountability after atrocity in Peru and across the globe. This article explores the factors that made the Fujimori trial possible. It briefly examines the global shift in norms favoring accountability for human rights violations that facilitated the extradition and prosecution of Fujimori, the interactions between these global norm shifts and local efforts to achieve accountability for grave human rights violations, and the specific domestic factors in Peru favoring prosecution. The article analyzes the Fujimori trial in terms of both process and outcome, and highlights its implications for politics in Peru and beyond, as well as for the broader field of transitional justice.

The purpose of this contribution is to shed light on the literary output of persons indicted or sentenced for war crimes in the International Criminal Tribunal for the former Yugoslavia (ICTY). Over one hundred books-autobiographies, studies, collections of documents, and even novels and poetry have been generated by no less than 22 persons in the detention unit of the ICTY in The Hague since 1993. Although some of these works did cause an occasional stir, as of yet there is no detailed overview of the entirety of this literary output. In order to fill this gap, this article assembles a full collection of works produced by ICTY inmates and analyzes this genre, the motivations of its authors, and the implications of their work. Examined as sources, these works can be used to study the collapse of the former Yugoslavia, the work of the ICTY, and its perception by the accused. I conclude by examining the corrosive role these works play in the process of coming to terms with the troubled past of the region. Keywords prison literature, ICTY, war criminals, wars in the former Yugoslavia Academic work on the International Criminal Tribunal for the former Yugoslavia (ICTY) rightfully notes the richness of literature on the ICTY. In contrast, works that emerged in the ICTY, more precisely at its detention unit, have not been the subject of detailed scrutiny. It is therefore not a matter of public knowledge that at least 119 books were written by indicted or convicted war criminals detained there and in other prisons where they serve time. Although this or that book written behind the ICTY bars made a splash, the extent of their production evades even most of the specialists interested in the ICTY. Therefore, an investigation into these works is in order to determine its scope, genre, and content. They are also examined as historical sources, both for the war in the former Yugoslavia and for the trials over the crimes committed during the hostilities. Lastly, as motivation of their authors is analyzed, their impact on flawed process of societal ...

In the global fight against impunity for war crimes, crimes against humanity and genocide, the capacity to prosecute individuals rests in the hands of domestic criminal or special prosecutors. While international prosecutions of core crimes are an important element of ensuring there is no safe haven for war criminals, pragmatic considerations of jurisdiction ensure that domestic prosecutions will remain highly relevant. This paper examines the influence of the global effort to prosecute core crimes on the exercise of prosecutorial discretion in Canada. It asks whether the principle of complimentarity does or ought to have an impact on the exercise of prosecutorial discretion in Canada. It concludes that the exercise of prosecutorial discretion must be more transparent and accountable to effectively contribute to the global fight against impunity.

It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of  reconciliation between conflicting parties as part of the process of conflict resolution. This line of thought is likely to seem particularly plausible in the light of denunciatory conceptions of punishment. For such accounts see the fact that punishment involves, among other things, the imposition of harsh treatment in such a way as to constitute a public denunciation of wrong-doing, as central to it's being punishment at all. Since it is natural to think that publicly denounce someone's wrongdoing stands in the way of being reconciled with them, the aims of punishment and reconciliation seem to be in tension. Arguments of this sort go some way towards explaining why the paradigm of the judicial trial is often held to be an unhelpful one in societies that have recently experienced conflict, and why other kinds of process, such as truth and reconciliation commissions (TRCs ) are thought to be preferrable.

My aim in this paper is to resist this line of thought. While there may often be good pragmatic reasons for preferring other kinds of responses to large-scale human rights violations, there is nothing about the judicial paradigm itself that puts it normatively in tension with the goal of reconciliation.  I shall argue that, on the contrary, judicial processes up to and including punishment are not only compatible with, but more or less indispensable for one particularly important kind of reconciliation to be possible. More specifically, I shall argue that although there are kinds of reconciliation which do not require forgiveness, and these forms of reconciliation may be the best we can hope for in many conflicts, reconciliation is nevertheless likely to require the expression of what Darrell Moellendorf has called 'political regret' and that the denunciatory role which punishment makes it particularly well-suited to this role.

When national courts judge international crimes like genocide, crimes against humanity and war crimes, they can draw on both national and international criminal law. The relationship between these two bodies of law is not always clear. Can national courts base prosecutions of international crimes directly on international criminal law? In a world where national laws often proscribe international crimes in an incomplete or deficient manner, this question has considerable practical relevance for the enforcement of international criminal law. Yet, it has received little attention in doctrine while practice shows widely divergent approaches of national courts to the feasibility of direct application. The author examines the concept of the direct application of international criminal law in national courts. He provides a rich description of the relevant practice in many different States ranging from Argentina to Senegal. Easily accessible, this book is a valuable tool for academics and practitioners alike.

Focusing on the guilty plea statements in sex crimes cases at the International Criminal Tribunal for the former Yugoslavia, this article investigates the ways that defendants represent themselves, their agencies, and their offenses in response to the legal framework within which they talk. While their acts are at the core of international criminal justice, defendants are more often spectators than participants when their guilt is negotiated and judged. They have for the most part also been absent in research on international criminal justice. As defendants' voices are rarely heard during proceedings, their guilty plea statements produce rare access to war criminal's staging of self and individual agency. At international criminal tribunals, defendants have wide audiences beyond the courtroom, and when they do speak, their stories potentially influence not only the court proceedings, but also wider cultural and societal narratives about wartime agency and sexual violence. After identifying a guilty plea script, the article draws attention to a consistent and intriguing silencing of sexual crimes in the past, and to how the defendants' imageries of present and future selves align with the ICJ effect narratives about the individually disciplining and rehabilitative character of criminal justice, and its general deterrent effects.

""Im deutsch besetzten Italien fielen zwischen 1943 und 1945 mehr als 70.000 Menschen dem Partisanenkrieg zum Opfer, darunter etwa 10.000 Zivilisten, die bei Massakern und Geiselerschießungen durch die Besatzer getötet wurden. Diese Ereignisse haben sich tief in das kollektive Gedächtnis Nachkriegsitaliens eingeprägt.
Der Autor, der ein Jahrzehnt lang als Sachverständiger bei Kriegsverbrecherprozessen vor Gerichten tätig war, stellt in diesem Buch erstmals systematisch und auf breite Quellenbasis gestützt das Vorgehen der deutschen Besatzungstruppen dar. Sachlich und differenziert werden u. a. mehrere durch die Prozesse der letzten Jahren bekannt gewordene Kriegsverbrechen wie Sant’Anna di Stazzema, Civitella in Val di Chiana und Marzabotto sowie deren Täter untersucht.""

The appropriate form of the legal address and redress to the victims of contemporary conflicts has received increasing attention in transitional justice literatures and debates. However, few scholarly analyses engage with civilians and military personnel as differential categories of unlawfully victimised persons. In seeking to address this gap, this article explores the construction of legal representation of civilian and military victims by the International Criminal Tribunal for the former Yugoslavia (ICTY). It first examines the prevalence, patterns and practices of their unlawful victimisation during the Yugoslavian conflicts, and then considers how civilians and military personnel are made visible at the ICTY as differential collectivities of victims by analysing patterns in its criminal prosecutions. This analysis shows that the ICTY constructs a legal record of acts of civilian victimisation, but an ambiguous account of its military victims.

This paper notes that the Special Court for Sierra Leone, often cited as a ‘new model’ for post-conflict international criminal justice, has been lauded for trying ‘persons bearing the greatest responsibility’ for crimes during Sierra Leone’s conflict. The paper challenges narratives depicting neo-liberal intent on the part of the Court’s designing and co- operating states. Examining empirical data in this case illuminates state behavior seeking to shape case selection for real or perceived interests, including entrenching and weakening regimes in the region. The paper considers whether pressure to prioritize particular crimes would provide tribunal designers one more instrument to deploy where politically amenable. Placing the creation of the Special Court in historical context illuminates geopolitical objectives outside the parameters of orthodox transitional justice narratives which highlight the dangers of selective prosecution. The Sierra Leonean case warns against assisting duplicitous actors who could selectively preference thematic prosecution of sex crimes against the grain of emerging case selection norms. Homogenizing case selection criteria rather than diversifying it without broad consensus mitigates the politicization risk.

The defence of superior orders is not new. However, within Australia, its statutory codification is lamentably underexplored. The 2018 Amendments to Part IIIAAA of the Defence Act 1903 (Cth) provides a neat catalyst to expand the defence and look at possible manners in which it can be constructed. Utilising a theoretical case study of Australian Defence Force members killing a possible terrorist, this article addresses the key elements of the defence-what an order is, when can it be constructed as being manifestly unlawful and what does reasonable and necessary force mean for Australian Defence Force members.

The Charter of the Nürnberg Tribunal introduced crimes against peace and crimes against humanity into international criminal law. War crimes, that include grave breaches of the Geneva Conventions and other serious violations of laws and customs applicable in armed conflict, were included upon proposal by the United States in the Rome Statute that establishes the International Criminal Court (ICC). The ICC goes beyond the limits of multilateral international criminal justice which has been applied to the Nuremberg Trials.

The Rome treaty, which essentially codifies customary jus cogens war crimes, allows the ICC to exercise jurisdiction over the nationals of non-party countries if the crime is committed in the territory of a party country. The U.S., which inspired the ICC, signed but not ratified the Rome Statute, and therefore has no legal obligations arising from such signature. Since 1998, the U.S. has declined to join the ICC because its broad powers could pursue "politically motivated prosecutions of Americans", thus posing a threat to U.S. sovereignty.

When in January 2015, after the State of Palestine accessed the Rome Statute, the ICC opened an investigation for alleged war crimes committed by Israel – which is not a member of ICC – the U.S. sided with the government of Tel Aviv and began undermining the credibility of the Court. In October 2016 South Africa, Burundi and The Gambia withdrew from the ICC, accusing it to be an instrument of political pressure of Western powers. When, in November 2017, the Court’s Office of the Prosecutor opened an investigation on alleged crimes committed in Afghanistan by U.S. military and civilian personnel, the U.S. stepped up efforts to de-legitimize the ICC. The U.S. stated that it wants to continue to exercise domestic jurisdiction over its nationals charged by the ICC for war crimes, thus removing them from international justice. In this way, we will return to a multilateral justice, or to the law of the strongest. Injustice anywhere is a threat to justice everywhere.

This book chapter explores and explains a range of investigative requirements, techniques, analytical methods and types of evidence most relevant to proving speech crimes in international criminal law. The chapter is an integral part of The Hartford Guidelines on Speech Crimes in International Criminal Law, published with the purpose of (a) emphasizing the preventative potential of the international criminal law, (b) indicting inchoate crimes rather than completed crimes and treating incitement to genocide as an inchoate crime not a mode of liability for completed crimes, (c) including hate speech as a form of the crime of persecution in article 7 of the Statute of the International Criminal Court, (d) amending article 25(3)(e) of the Rome Statute to include a form of liability of intentionally, directly and publicly inciting the commission of any crime under the Statute, irrespective of whether those crimes are attempted or committed, and (e) drawing from social science research to evaluate speech according to a checklist of indicative factors known to elevate the risk of ethnic, racial and religious violence.

„U jugoslovenskoj i postjugoslovenskim istoriografijama nije objavljeno sveobuhvatno istraživanje koje bi za temu imalo fenomen kažnjavanja dužnosnika političkog, vojnog i represivnog aparata NDH od strane organa NOVJ/JA i posleratnih vlasti DFJ/FNRJ. Međutim, nema sumnje da je ogromna većina istaknutih protagonista političkog, vojnog i represivnog aparata NDH koji su tokom rata bili zarobljeni od strane NOVJ/JA ili su od strane britanskih i američkih saveznika u poraću ustupljeni organima vlasti DFJ/FNRJ – kažnjena smrću, a manjim delom dugogodišnjom robijom. Predgovor Vukmanovićevoj studiji, kao i optužnica i presuda protiv Gutića, Neđelskog i Bilogrivića, ukazuju na ozbiljnost sudskih i upravnih vlasti u sakupljanju činjenica o delatnosti Gutića i njegovih saradnika u cilju što boljeg potkrepljivanja optužnice. Na taj način knjiga o kojoj je reč demantuje ne samo stereotip srpskih nacionalista koji sugeriše da su posleratne vlasti učinile premalo u kažnjavanju ustaških ratnih zločinaca, već demantuje i stereotip hrvatskih revizionista koji sugeriše da su predstavnici nomenklature NDH suđeni na posleratnim „montiranim procesima“.“ (Milan Radanović)

Purpose: The aim of this paper is to present the situation regarding the detection and prosecution of war crimes in the Western Balkans, as well as to point out the main specifics or, better said, problems encountered by judicial authorities while dealing with these crimes. Design/Methods/Approach: The article is based on the current work of the judiciary and the prosecutor of the republics of Serbia, Bosnia and Herzegovina, as well as Croatia. We chose these three countries as the spatial framework for our research because during the civil wars in the Western Balkans most war crimes were committed on their territories. Through content analysis of existing domestic literature and our own survey research, the findings were comparatively analysed. In order to obtain further empirical and relevant information regarding the investigation and prosecution of war criminals in the Western Balkans, the methods of direct observation and analysis of the content of the judicial proceedings were applied. Findings: The work on detecting and prosecuting war crimes in attempting to provide evidence for use in criminal war crimes proceedings in the Western Balkans is a daunting task. This is because these crimes are both factually and legally of the most complicated sort, not the least in terms of their severity. Therefore, the research started by presenting the structure of the responsible governmental bodies conducting proceedings against war crime perpetrators in Bosnia and Herzegovina, Croatia, and Serbia. Special attention was paid to legal and practical problems in this field. The authors point to the many challenges making the detection and prosecution of these crimes both difficult and complicated. Thus, the aim of this article is to examine the aforementioned problems and, on the basis of analysis, contribute to building more effective legal and criminalistics methods for detecting and prosecuting war crime offenders in the Western Balkans. Research Limitations/Implications: The research results for the analysis of the investigative procedure and prosecution of war criminals in the Republic of Serbia, Bosnia and Herzegovina, and Croatia focus specifically on material collected regarding crimes committed in the period 1991 to 1999 only.

Practical Implications:
The research results can be used to develop a strategy for detecting and prosecuting war crimesby suggesting improved methods for gathering quality personal and material evidence in the Western Balkans. In addition, the paper provides information for practitioners and theorists outside of the Western Balkanscurrently dealing with issues related to such crimes. By familiarising themselves with the research findings herein, they will be able to expand their knowledge and use it as a basis for new research in this field. Lawmakers can also benefit from the results and make necessary amendments to the legislation and regulations of criminal procedures in the Republic of Serbia, Bosnia and Herzegovina, and Croatia to enhance the efforts in the area of countering war crimes. Further, by identifying the problems of conducting and processing investigations in the region, and by stressing the restricted prosecutorial resources, including the limited number of specialised prosecutors of war crimes, crimes against humanity and genocide, the shortage of prosecutors and support staff, as well as the lack of specialisation and expertise among defence counsel the findings of this research can contribute to the curriculum for the education of future lawyers (prosecutors, investigators, judges etc.) in this field.

Originality/Value:
The originality of this paper is reflected in the empirical study of procedures related to investigating and prosecuting war criminals inthe Western Balkans. This approach explores the challenges associated with a variety of issues. As such, it may also provide valuable information to be used in creating new methodologies for detecting and gathering evidence in legal and criminalistics practice. Lastly, it can serve as a basis for other research in the field.

Keywords: war crimes, investigation, prosecution, proving, legal and practical problems

"This short paper aims to provide an overall assessment of the transitional justice processes in the countries emerging from the violent break-up of the former Yugoslavia by focusing on the issues of reparations for victims of the armed conflicts. These states are Croatia, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia (FYROM), Serbia, and Kosovo. The issue of reparations for victims can be seen as one measure of the breadth and depth of the transitional justice process within these countries. Evidently, dealing with a violent past comes at a cost—political, economic, and social—and requires gradually changing public attitudes through education and increasing public awareness, which in turn requires political will and courageous and good political leadership. The paper will focus on two main transitional justice initiatives. First, it will address the role of the International Criminal Tribunal for the former Yugoslavia (ICTY) in supporting transitional justice processes in these states, with particular reference to the issues of reparations for victims and reconciliation. The Tribunal’s activity and apparent achievements are contrasted with perceptions of, and general public attitudes towards, its work. Second, the paper will address a proposal coming from the civil society for creating a regional truth and reconciliation commission in the Balkans. While these two issues will form the primary focus on this paper, it should also be noted that many issues connected to the evaluation of transitional justice processes and societal transformation in the states emerging from the former Yugoslavia are likely to raise further questions, which cannot be adequately addressed in a paper of this scope."

This Briefing Paper considers the context and reasons underlying the small number of guilt admissions in international criminal courts and tribunals, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court. Limited attention has been paid to the rationale that may induce perpetrators of war crimes to plead guilty. In particular, as this paper outlines, interviewing techniques may be a key component in influencing guilt admission in the investigation and trial process. Such admissions can also assist in reconciliation and recognition of past crimes. The author concludes by outlining future research on the incorporation of effective interview techniques into international war crime investigations.