Need an account? Click here to sign up. Download Free PDF. Shota Imerlishvili. A short summary of this paper. Download Download PDF. Translate PDF. The table aims, on the one hand, to identify the origin of the terms used in the Statute's definitions of war crimes and, on the other, to highlight the differences in wording and content between those definitions and obligations arising under IHL instruments.
The intentional commission of: Art. Each State Party shall make the crimes set out in paragraph 1 punishable by appropriate penalties which shall take into account their grave nature [Humanitarian assistance:] [Personnel participating in relief actions] shall be Art. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings The High Contracting Parties undertake to respect Art.
Any person commits an offence within the meaning of Art. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law the offences set forth in this Article and to make such offences punishable by appropriate penalties.
When doing so, Parties shall comply with general principles of law and international law, including the rules extending individual criminal responsibility to persons other than those who directly commit the act [The International Tribunal shall have the power to Art. ICTY Statute Such violations shall include, but not be limited to:] Seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science Each party to the conflict must respect cultural property: Rule 38 of CIHL Study A.
Special care must be taken in military operations to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments unless they are military objectives B. Property of great importance to the cultural heritage of every people must not be the object of attack unless imperatively required by military necessity Each party to the conflict must protect cultural property: Rule 40 of CIHL Study A. All seizure of or destruction or wilful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science is prohibited B.
Any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, property of great importance to the cultural heritage of every people is prohibited Art. In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal for Rwanda shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.
Article Composition of the Chambers [as modified by Security Council Resolution ] The Chambers shall be composed of sixteen permanent independent judges, no two of whom may be nationals of the same State, and a maximum at any one time of nine ad litem independent judges appointed in accordance with article 12 ter , paragraph 2, of the present Statute, no two of whom may be nationals of the same State. Three permanent judges and a maximum at any one time of six ad litem judges shall be members of each Trial Chamber.
Each Trial Chamber to which ad litem judges are assigned may be divided into sections of three judges each, composed of both permanent and ad litem judges.
A section of a Trial Chamber shall have the same powers and responsibilities as a Trial Chamber under the present Statute and shall render judgement in accordance with the same rules. Seven of the permanent judges shall be members of the Appeals Chamber. The Appeals Chamber shall, for each appeal, be composed of five of its members. A person who for the purposes of membership of the Chambers of the International Tribunal for Rwanda could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights.
From the nominations received the Security Council shall establish a list of not less than twenty-two and not more than thirty-three candidates, taking due account of the adequate representation on the International Tribunal for Rwanda of the principal legal systems of the world; The President of the Security Council shall transmit the list of candidates to the President of the General Assembly.
From that list the General Assembly shall elect eleven permanent judges of the International Tribunal for Rwanda. The candidates who receive an absolute majority of the votes of the States Members of the United Nations and of the non-member States maintaining permanent observer missions at United Nations Headquarters, shall be declared elected.
Should two candidates of the same nationality obtain the required majority vote, the one who received the higher number of votes shall be considered elected. In the event of a vacancy in the Chambers amongst the permanent judges elected or appointed in accordance with this article, after consultation with the Presidents of the Security Council and of the General Assembly, the Secretary-General shall appoint a person meeting the qualifications of article 12 of the present Statute, for the remainder of the term of office concerned.
The permanent judges elected in accordance with this article shall be elected for a term of four years. The terms and conditions of service shall be those of the permanent judges of the International Tribunal for the Former Yugoslavia. They shall be eligible for re-election. Article 12 ter : Election and Appointment of Ad litem Judges The ad litem judges of the International Tribunal for Rwanda shall be elected by the General Assembly from a list submitted by the Security Council, in the following manner: The Secretary-General shall invite nominations for ad litem judges of the International Tribunal for Rwanda from States Members of the United Nations and non-member States maintaining permanent observer missions at United Nations Headquarters; Within sixty days of the date of the invitation of the Secretary-General, each State may nominate up to four candidates meeting the qualifications set out in article 12 of the present Statute, taking into account the importance of a fair representation of female and male candidates; The Secretary-General shall forward the nominations received to the Security Council.
From the nominations received the Security Council shall establish a list of not less than thirty-six candidates, taking due account of the adequate representation of the principal legal systems of the world and bearing in mind the importance of equitable geographical distribution ; The President of the Security Council shall transmit the list of candidates to the President of the General Assembly.
From that list the General Assembly shall elect the eighteen ad litem judges of the International Tribunal for Rwanda. The candidates who receive an absolute majority of the votes of the States Members of the United Nations and of the non-member States maintaining permanent observer missions at United Nations Headquarters shall be declared elected; The ad litem judges shall be elected for a term of four years.
They shall not be eligible for re-election. During their term, ad litem judges will be appointed by the Secretary-General, upon request of the President of the International Tribunal for Rwanda, to serve in the Trial Chambers for one or more trials, for a cumulative period of up to, but not including, three years. When requesting the appointment of any particular ad litem judge, the President of the International Tribunal for Rwanda shall bear in mind the criteria set out in article 12 of the present Statute regarding the composition of the Chambers and sections of the Trial Chambers, the considerations set out in paragraphs 1 b and c above and the number of votes the ad litem judge received in the General Assembly.
Article 12 quater : Status of Ad litem Judges During the period in which they are appointed to serve in the International Tribunal for Rwanda, ad litem judges shall: Benefit from the same terms and conditions of service mutatis mutandis as the permanent judges of the International Tribunal for Rwanda; Enjoy, subject to paragraph 2 below, the same powers as the permanent judges of the International Tribunal for Rwanda; Enjoy the privileges and immunities, exemptions and facilities of a judge of the International Tribunal for Rwanda; Enjoy the power to adjudicate in pre-trial proceedings in cases other than those that they have been appointed to try.
During the period in which they are appointed to serve in the International Tribunal for Rwanda, ad litem judges shall not: Be eligible for election as, or to vote in the election of, the President of the International Tribunal for Rwanda or the Presiding Judge of a Trial Chamber pursuant to article 13 of the present Statute; Have power: To adopt rules of procedure and evidence pursuant to article 14 of the present Statute.
They shall, however, be consulted before the adoption of those rules; To review an indictment pursuant to article 18 of the present Statute; To consult with the President of the International Tribunal for Rwanda in relation to the assignment of judges pursuant to article 13 of the present Statute or in relation to a pardon or commutation of sentence pursuant to article 27 of the present Statute.
Article Officers and Members of the Chambers The permanent judges of the International Tribunal for Rwanda shall elect a President from amongst their number. After consultation with the permanent judges of the International Tribunal for Rwanda, the President shall assign two of the permanent judges elected or appointed in accordance with article 12 bis of the present Statute to be members of the Appeals Chamber of the International Tribunal for the Former Yugoslavia and eight to the Trial Chambers of the International Tribunal for Rwanda.
After consultation with the permanent judges of the International Tribunal for Rwanda, the President shall assign such ad litem judges as may from time to time be appointed to serve in the International Tribunal for Rwanda to the Trial Chambers.
A judge shall serve only in the Chamber to which he or she was assigned. The permanent judges of each Trial Chamber shall elect a Presiding Judge from amongst their number, who shall oversee the work of that Trial Chamber as a whole. Article Rules of Procedure and Evidence The judges of the International Tribunal for Rwanda shall adopt, for the purpose of proceedings before the International Tribunal for Rwanda, the rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters of the International Tribunal for the Former Yugoslavia with such changes as they deem necessary.
Article The Prosecutor The Prosecutor shall be responsible for the investigation and prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January and 31 December The Prosecutor shall act independently as a separate organ of the International Tribunal for Rwanda.
He or she shall not seek or receive instructions from any government or from any other source. The Office of the Prosecutor shall be composed of a Prosecutor and such other qualified staff as may be required.
He or she shall be of high moral character and possess the highest level of competence and experience in the conduct of investigations and prosecutions of criminal cases. The Prosecutor shall serve for a four-year term and be eligible for reappointment.
The terms and conditions of service of the Prosecutor shall be those of an Under-Secretary-General of the United Nations. The staff of the Office of the Prosecutor shall be appointed by the Secretary-General on the recommendation of the Prosecutor. Article The Registry The Registry shall be responsible for the administration and servicing of the International Tribunal for Rwanda.
The Registry shall consist of a Registrar and such other staff as may be required. The Registrar shall be appointed by the Secretary-General after consultation with the President of the International Tribunal for Rwanda. He or she shall serve for a four-year term and be eligible for re-appointment.
The terms and conditions of service of the Registrar shall be those of an Assistant Secretary-General of the United Nations. The Staff of the Registry shall be appointed by the Secretary-General on the recommendation of the Registrar. Article Investigation and Preparation of Indictment The Prosecutor shall initiate investigations ex officio or on the basis of information obtained from any source, particularly from governments, United Nations organs, intergovernmental and non-governmental organizations.
The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed. The Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these tasks, the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned.
If questioned, the suspect shall be entitled to be assisted by Counsel of his or her own choice, including the right to have legal assistance assigned to the suspect without payment by him or her in any such case if he or she does not have sufficient means to pay for it, as well as necessary translation into and from a language he or she speaks and understands.
Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber. Article Review of the Indictment The judge of the Trial Chamber to whom the indictment has been transmitted shall review it.
If satisfied that a prima facie case has been established by the Prosecutor, he or she shall confirm the indictment. If not so satisfied, the indictment shall be dismissed. Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial.
Article Commencement and Conduct of Trial Proceedings The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the International Tribunal for Rwanda, be taken into custody, immediately informed of the charges against him or her and transferred to the International Tribunal for Rwanda. The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea.
The Trial Chamber shall then set the date for trial. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its Rules of Procedure and Evidence. In the determination of charges against him or her, the accused shall be entitled to a fair and public hearing, subject to Article 21 of the Statute. The accused shall be presumed innocent until proven guilty according to the provisions of the present Statute.
Article Judgement The Trial Chambers shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law. The judgement shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in public.
It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended. Article Penalties The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of Rwanda. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.
In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.
Article Appellate Proceedings The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: An error on a question of law invalidating the decision; or An error of fact which has occasioned a miscarriage of justice.
The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers. Article Review Proceedings Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal for Rwanda an application for review of the judgement. Article Enforcement of Sentences Imprisonment shall be served in Rwanda or any of the States on a list of States which have indicated to the Security Council their willingness to accept convicted persons, as designated by the International Tribunal for Rwanda.
Article Pardon or Commutation of Sentences If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal for Rwanda accordingly. Article Cooperation and Judicial Assistance States shall cooperate with the International Tribunal for Rwanda in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.
States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including but not limited to: The identification and location of persons; The taking of testimony and the production of evidence; The service of documents; The arrest or detention of persons; The surrender or the transfer of the accused to the International Tribunal for Rwanda.
The judges, the Prosecutor and the Registrar shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.
The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of the United Nations under Articles V and VII of the Convention referred to in paragraph 1 of this article.
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