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References
For general information on rape and other forms of sexual assault in times of armed conflict, see Susan Brownmiller,Against Our Will: Men, Women, and Rape (1975); Theodor Meron,Henry's Wars and Shakespeare's Laws Perspectives on the Law of War in the Later Middle Ages (1993).
E.g., CSCE Rapporteurs (Corell-Turk-Thune), Moscow Human Dimension Mechanism to Bosnia, Herzegovina, and Croatia,Proposal for an International War Crimes Tribunal for the Former Yugoslavia (1993); Letter from the Permanent Representative of Sweden to the Secretary-General, Feb. 18, 1993, U.N. Doc. S/25307 (1993), annexing a summary of this report and the text of a decision by CSCE participating states on the report; Amnesty International,Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); Helsinki Watch,War Crimes in Bosnia-Herzegovina (1992); Theodor Meron, Editorial Comment,Rape as a Crime under International Humanitarian Law, 87 Am. J. Int'l L. 425 & n.6 (1993).
Letter from the Secretary-General to the President of the Security Council, May 24, 1994, U.N. Doc. S/1994/674 (1994), transmittingFinal Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), available in U.N. Gopher/Current Information/Secretary-General's Reports [hereinafterFinal Report].
The Commission of Experts was set up by S.C. Res. 780, U.N. SCOR, 47th Year, 1992 S.C. Res. & Dec. at 36, U.N. Doc. S/INF/48 (1992),reprinted in appendix A of this issue ofCriminal Law Forum.
The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report] The Statute of the International Tribunal is set out as an annex toSecretary-General's Report, supra, and isreprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1192 [hereinafter Statute]. For background, see Peter Burns,The International Criminal Tribunal: The Difficult Union of Principle and Politics, in this issue ofCriminal Law Forum.
Secretary-General's Report, supra The Secirity Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gorpher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.I (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. note 5, ¶ 11, 48; Statute, The Statute of the International Tribunal is set out as an annex toSecretary-General's Report, supra, and isreprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1192 [hereinafter Statute]. For background, see Peter Burns,The International Criminal Tribunal: The Difficult Union of Principle and Politics, in this issue ofCriminal Law Forum. supra note 5, art. 5.
On the Tribunal's jurisdiction over such crimes, seeinfra section entitled “Crimes against Humanity.” On the relevant provision of the Nuremberg Charter, seeinfra text accompanying note 20.
On the Tribunal's jurisdiction over such crimes, seeinfra section entitled “Grave Breaches of the Geneva Conventions of 1949.”
On the Tribunal's jurisdiction over such crimes, seeinfra section entitled “Violations of the Laws or Customs of War.”
On the Tribunal's jurisdiction over such crimes, seeinfra section entitled “Genocide.”
Secretary-General's Report, supra The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. note 5, ¶ 33, 35. See sectioninfra entitled
For a more technical discussion, seeFinal Report, supra note 3, Letter from the Secretary-General to the President of the Security Council, May 24, 1994, U.N. Doc. S/1994/674 (1994), transmittingFinal Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), available in U.N. Gopher/Current Information/Secretary-General's Reports [hereinafterFinal Report]. annex II.
While victims of rape and other forms of sexual assault can, of course, be prisoners of war or belligerents, we have chosen to focus on the law concerning civilians, as this category embraces the majority of sexual assault victims in the region of the former Yugoslavia.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV].
See R.J. Cook,Accountability in International Law for Violations of Women's Rights by Non-state Actors, inReconceiving Reality: Women and International Law 93, 104-05 (American Society of International law Studies in Transnational Legal Policy No. 25, Dorinda G. Dallmeyer ed., 1993).
See Vikki Bell,Beyond the “Thorny Question”: Feminism, Foucault, and the Desexualisation of Rape, 19 Int'l J. Soc. L. 83 (1991); Hannecke Acker & Marijke Rawie,Seksueel geweld tegen vrouwen en meisjes 16 (Neth. Ministerie van Sociale Zaken en Werkgelegenheid 1982);Seksueel geweld: iedere vrouw en ieder meisje kan er mee te maken krijgen 7 (Heleen de Boer et al. eds., 1988).
Secretary-General's Report, supra note 5, The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. ¶ 48.
Lieber's Code, a comprehensive set of principles governing the conduct of belligerents in enemy territory, was drafted for the Union forces in the U.S. Civil War. This was the first attempt to codify the customary law of warfare, and Lieber's Code became the basis for later efforts at codification on the international level. Francis Lieber, Instructions for the Government of Armies of the United States in the Field,promulgated Apr. 24, 1863, art. 44,reprinted in The Laws of Armed Conflicts 3 (Dietrich Schindler & Jiri Toman eds., 1988). The Oxford Manual was drafted by Gustave Moynier under the auspices of the Institute of International Law as a model for domestic legislation on the laws and customs of war. Laws of War on Land (Oxford Manual),adopted Sept. 9, 1880, art. 49,reprinted in The Laws of Armed Conflicts, supra, at 35. A similar provision appears in the Declaration of Brussels, an early draft codification of the laws of war at the international level. Final Protocol and Project of an International Declaration Concerning the Laws and Customs of War, Aug. 27, 1874, art. 38,reprinted in The Laws of Armed Conflicts, supra, at 25 (demanding respect for “[f]amily honour and rights, and the lives and property of persons, as well as their religious convictions and their practice”). All these documents were influential in the preparation of both Hague Convention (II) with Respect to the Laws and Customs of War on Land, with Annexed Regulations, July 29, 1899, and Hague Convention (IV) Respecting the Laws and Customs of War on Land, with Annexed Regulations, Oct. 18, 1907 [hereinafter Hague Convention IV],reprinted in parallel columns in The Laws of Armed Conflicts, supra, at 63.
Secretary-General's Report, supra note 5, The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. ¶ 47 (citations omitted).
The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279. The Charter of the International Military Tribunal at Nuremberg is set out inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolumeTrial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945–1 October 1946 (1947–1949). For the judgment, see 22id. at 411 [hereinafter Nuremberg Judgment]. The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20,reprinted in 1 Benjamin Ferencz,Defining International Aggression 522 (1975). It operated pursuant to Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), 4 Bevans 21,reprinted in 1 Ferencz,supra, at 523. the proceedings are available on microfilm.Record of the Proceedings of the International Military Tribunal for the Far East, Tokyo, Japan (1946–1948) [hereinafterIMTFE Record of Proceedings]. Majority and dissenting opinions have been collected inThe Tokyo Judgment: The International Military Tribunal for the Far East, 29 April 1946–12 November 1948 (Bert V.A. Röling & Christiaan Frederik Rüter eds., 1977) [hereinafterTokyo Judgment]. For additional sources, seeinfra note 27. William H. Parks,Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 69–70 (1973);see also Brownmiller,supra note 1, Susan Brownmiller,Against Our Will: Men, Women, and Rap (1975); Theodor Meron,Henry's Wars and Shakespeare's Laws: Perspectives on the Law of War in the Later Middle Ages (1993). at 56–62. For the official transcript of the proceedings in United States v. Soema Toyoda, seeIMTFE Record of Proceedings, supra note 20.
See Egon Schwelb,Crimes against Humanity, 23 Brit. Y.B. Int'l L. 178, 191 (1946).
Allied Control Council Law No. 10, Dec. 20, 1945, art. II(1)(c), in Control Council for Germany, Official Gazette, Jan. 31, 1946, at 50,reprinted in Documents on Prisoners of War 304 (Naval War College International Law Studies Vol. 60, Howard S. Levie ed., 1979) (including “rape” under the heading of crimes against humanity as one of the “atrocities and offences”). On the nexus between this law and the Nuremberg Charter, see Frank C. Newman,United Nations Human Rights Covenants and the United States Government: Diluted Promises, Foreseeable Futures, 42 DePaul L. Rev. 1241, 1250–51 (1993); Diane F. Orentlicher,Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2587–90 (1991). The proceedings under Control Council Law No. 10 are reported in the multivolumeTrials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Nuernberg, October 1946–April 1949 (1949–1953) [hereinafterTrials of War Criminals]. As with Control Council Law No. 10, the International Military Tribunal for the Far East considered rape a war crime. 2Tokyo Judgment, supra note 20, The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279. The Charter of the International Military Tribunal at Nuremberg is set out inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolumeTrial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945–1 October 1946 (1947–1949). For the judgment, see 22id. at 411 [hereinafter Nuremberg Judgment]. The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20,reprinted in 1 Benjamin Ferencz,Defining International Aggression 522 (1975). It operated pursuant to Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), 4 Bevans 21,reprinted in 1 Ferencz,supra, at 523. The proceedings are available on microfilm.Record of the Proceedings of the International Military Tribunal for the Far East, Tokyo, Japan (1946–1948) [hereinafterIMTFE Record of Proceedings]. Majority and dissenting opinions have been collected inThe Tokyo Judgment: The International Military Tribunal for the Far East, 29 April 1946–12 November 1948 (Bert V.A. Röling & Christiaan Frederik Rüter eds., 1977) [hereinafterTokyo Judgment]. for additional sources, seeinfra note 27. William H. Parks,Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 69–70 (1973);see also Brownmiller,supra note 1, Susan Brownmiller,Against Our Will: Men, Women, and Rape (1975); Theodor Meron,Henry's Wars and Shakespeare's Laws: Perspectives on the Law of War in the Later Middle Ages (1993). at 56–62. For the official transcript of the proceedings in United States v. Soema Toyoda, seeIMTFE Record of Proceedings, supra note 20. The Rape of Nanking trial is reported in 4 UN War Crimes Comm'n,Law Reports of Trials of War Criminals 87 (1947). On the International Military Tribunal for the Far East, see Richard H. Minear,Victor's Justice: The Tokyo War Crimes Trial (1971); Bert V.A. Röling & Antonio Cassese,The Tokyo Trial and Beyond (1993); at 965, 971–72, 988–89; 1id. at 385. For a discussion, see Meron,supra note 2,E.g., CSCE Rapporteurs (Corell-Turk-Thune), Moscow Human Dimension Mechanism to Bosnia, Herzegovina, and Croatia,Proposal for an International War Crimes Tribunal for the Former Yugoslavia (1993); Letter from the Permanent Representative of Sweden to the Secretary-General, Feb. 18, 1993, U.N. Doc. S/25307 (1993), annexing a summary of this report and the text of a decision by CSCE participating states on the report; Amnesty International,Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); Helsinki Watch,War Crimes in Bosnia-Herzegovina (1992); Theodor Meron, Editorial Comment,Rape as a Crime under International Humanitarian Law, 87 Am. J. Int'l L. 425 & n.6 (1993). at 425–26.See generally infra section entitled “Aspects of Prosecution”.
See, e.g., Ann Wolbert Burgess & Lynda Lytle Holmstrom,Rape: Victims of Crisis (1974); Anne E. Goldfeld et al.,The Physical and Psychological Sequelae of Torture: Symptomatology and Diagnosis, 259 JAMA 2725 (1988); Shana Swiss & Joan E. Giller,Rape as a Crime of War: A Medical Perspective, 270 JAMA 612 (1993).
Vienna Declaration and Programme of Action, U.N. Doc. A/CONF. 157/24 (pt. I), at 20 (1993),reprinted in 32 I.L.M. 1661.
See Donna J. Sullivan, Current Developments,Women's Human Rights and the 1993 World Conference on Human Rights, 88 Am. J. Int'l L. 152, 155–56 (1994).
Rape and other forms of sexual assault can be caught by both conventional and customary law prohibitions on torture or other cruel, inhuman, or degrading treatment and on forced labor or enslavement—offenses that come within Nuremberg Charter,supra note 20, The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279. The Charter of the International Military Tribunal at Nuremberg is set out inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolumeTrial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945–1 October 1946 (1947–1949). For the judgment, see 22id. at 411 [hereinafter Nuremberg Judgment]. art. 6(c); Draft Code of Crimes against the Peace and Security of Mankind art. 21, inReport of the International Law Commission on Its Forty-third Session, U.N. GAOR, 46th Sess., Supp. No. 10, at 238, U.N. Doc. A/46/10 (1991) [hereinafter Draft Code]. A selective set of references follows. With regard to torture, see Universal Declaration of Human Rights art. 5, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948); Geneva Convention IV,supra note 14, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. arts. 3, 27, 32; International Convenant on Civil and Political Rights,adopted Dec. 19, 1966, art. 7, 999 U.N.T.S. 171; Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) [hereinafter Torture Convention];see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126. With regard to forced labor, see ILO Convention (No. 29) Concerning Forced or Compulsory Labour,adopted June 28, 1930, 39 U.N.T.S. 55 (as amended 1946); ILO Convention (No. 105) Concerning the Abolition of Forced Labour,adopted June 25, 1956, 320 U.N.T.S. 291; International Covenant on Civil and Political Rights,supra, art. 8. With regard to slavery, see Slavery Convention, Sept. 25, 1926, 60 L.N.T.S. 253; Protocol Amending the Slavery Convention of September 25, 1926,opened for signature Dec. 7, 1953, 212 U.N.T.S. 17; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery,adopted Sept. 7, 1956, 266 U.N.T.S. 3; Universal Declaration of Human Rights,supra, art. 4; International Convenant on Civil and Political Rights,supra, art. 8. For background, see Theodor Meron,Human Rights and Humanitarian Norms as Customary Law (1989) [hereinafter Meron,Human Rights]; Theodor Meron, Editiorial Comment,War Crimes in Yogoslavia and the Development of International Law, 88 Am. J. Int'l L. 78 (1994) [hereinafter Meron,War Crimes in Yugoslavia]; Sydney L. Goldenberg,Crimes against Humanity, 1945–1970: A Study in the Making and Unmaking of International Criminal Law, 10 W. Ont. L. Rev. 1 (1971).
William H. Parks,Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 69–70 (1973);see also Brownmiller,supra note 1, at 56–62. For the official transcript of the proceedings in United States v. Soema Toyoda, seeIMTFE Record of Proceedings, supra note 20. The Rape of Nanking trial is reported in 4 UN War Crimes Comm'n,Law Reports of Trials of War Criminals 87 (1947). On the International Military Tribunal for the Far East, see Richard H. Minear,Victors' Justice: The Tokyo War Crimes Trial (1971); Bert V.A. Röling & Antonio Cassese,The Tokyo Trial and Beyond (1993);see also sources citedsupra note 20. The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European. The Charter of, the International Military Tribunal at Nuremberg is set our inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolumeTrial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945–1 October 1946 (1947–1949). For the judgment, see 22id. at 411 [hereinafter Nuremberg Judgment]. The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20,reprinted in 1 Benjamin Ferencz,Defening International Aggression 522 (1975). It operated pursuant to Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), 4 Bevans 21,reprinted in 1 Ferenczsupra, at 523. The proceedings are available on microfilm.Record of the Proceedings of the International Military Tribunal for the Far East, Tokyo, Japan (1946–1948) [hereinafterIMTFE Record of Proceedings]. Majority and dissenting opinions have been collected inThe Tokyo Judgment: The International Military Tribunal for the Far East, 29 April 1946–12 November 1948 (Bert V.A. Röling & Christiaan Frederik Rüter eds., 1977) [hereinafterTokyo Judgment]. For additional sources seeinfra note 27.
See Brownmiller,supra Susan Brownmiller,Against Our Will: Men, Women, and Rape (1975); Theodor Meron,Henry's Wars and Shakespeare's Laws: Perspectives on the Law of War in the Later Middle Ages (1993). note 1, ch. 3.
Secretary-General's Report, supra The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue of Criminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. note 5 ¶ 34.
Secretary-General's Report, supra The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th. mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. ¶¶ 34–35.
Id ¶ 35; these are codified in Statute,supra The Statute of the International Tribunal is set out as an annex toSecretary-General's Report, supra, and isreprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1192 [hereinafter Statute]. For background, see Peter Burns,The International Criminal Tribunal: the Difficult Union of Principle and Politics, in this issue ofCriminal Law Forum. note 5, arts. 2–5.
Geneva Convention IV, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV].supra note 14; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners, of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III].
Compare Meron,Human Rights, supra see also European Convention for the Protection of Human Rights and Fundamental Freedomsopened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126. note 26, at 46,with Theodor, Meron,The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122, 129 [hereinafter Meron,War Crimes Trials],and Jordan J. Paust,Applicability of International Criminal Laws to Events in the Former Yugoslavia, 9 Am. U. J. Int'l L. & Pol'y 449, 512 n.43 (1994) (“The nature of most portions of the Geneva Conventions are now viewed as customary law.”).See generally Meron,Human Rights, supra, at 41–62; Theodor Meron,The Geneva Conventions as Customary Law, 81 Am. J. Int'l L. 348 (1987).
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28) (considering Convention on the Prevention and Punishment of the Crime of Genocide,adopted Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]). Meron,Human Rights, supra note 26, at 20, agrees that Genocide Convention,supra, embodies customary law.
Hauge Convention IV,supra All these documents were influential in the preparation of both Hague Convention (II) with Respect to the Laws and Customs of War on Land, with Annexed Regulations, July 29, 1899, and Hague Convention (IV) Respecting the Laws and Customs of War on Land, with Annexed Regulations, Oct. 18, 1907 [hereinafter Hague Convention IV],reprinted in parallel columns in the Laws of Armed Conflicts, supra, at 36. note 18; Nuremberg Judgment,supra note 20; The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axix, The Charter of the International Military Tribunal at Nuremberg is set out inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolumeTrial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945–1 October 1946 (1947–1949). For the judgment, see 22id. at 411 [hereinafter Nuremberg Judgment]. The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20,reprinted in 1 Benjamin Ferencz,Defining International Aggression 522 (1975). It operated pursuant to Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), 4 Bevans 21,reprinted in 1 Ferencz,supra, at 523. The proceedings are available on microfilm.Record of the Proceedings of the International Military Tribunal for the Far East, Tokyo, Japan (1946–1948) [hereinafterIMTFE Record of Proceedings]. Majority and dissenting opinions have been collected inThe Tokyo Judgment: The International Military Tribunal for the Far East, 29 April 1946–12 November 1948 (Bert V.A. Röling & Christiaan Frederik Rüter eds, 1977) [hereinafterTokyo Judgment]. For additional sources, seeinfra note 27. at 414;Secretary-General's Report, supra note 5, ¶ 42. The Security Council set up the International Tribunal through S.C. Res 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report].
See Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95 (I), U.N. Doc. A/64/Add. 1, at 188 (1946) [hereinafter Affirmation of Nuremberg Principles].
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II].
According to Meron,Human Rights, supra note 26,see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126. at 76 & nn. 209-210, in the Iran-Iraq conflict both the International Committee of the Red Cross and the parties invoked Additional Protocol I,supra note 37. Protocol Additional to the Geneva Conventions of 12 August 1949., and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II].
“While the conventions are now unquestionably part of customary international law and therefore binding on nonparties...the status of the protocols is less secure and it is likely that only states that have affirmatively agreed to be bound by them are in fact so bound.” Timothy L.H. McCormack & Gerry J. Simpson,The International Law Commission's Draft Code of Crimes against the Peace and Security of Mankind: An Appraisal of the Substantive Provisions, 5 Crim. L.F. 1, 37 (1994).
See Nico Keijzer,Internationale berechting van oorlogsmisdrijven in het voormalige Joegoslavië, Militair Rechterlijk Tijdschrift, Nov.–Dec. 1993, at 62, 66; Meron,Human Rights, supra note 26, at 62–78; Howard S. Levie,The 1977 Protocol I and the United States, 38 St. Louis Univ. L.J. 469 (1994).
4The Geneva Conventions of 12 August 1949; Commentary 590 n.1 594 (Jean S. Pictet gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66 and accompanying text.
Office of Public Information, United Nations,The Crime of Genocide: A United Nations Convention Aimed at Preventing Destruction of Groups and at Punishing Those Responsible 4 (1973) [hereinafterCrime of Genocide]; Jiri Toman,Index of the Geneva Conventions for the Protection of War Victims of 12 August 1949, at 194 (1973).
See Vienna Convention on Succession of States in Respect of Treaties,opened for signature Aug. 23, 1978, arts. 34–35, U.N. Doc. A/CONF.80/31/Corr.2 (1978),reprinted in 17 I.L.M. 1488. Paust.supra note 33, at 499–504, concludes that the new states in the region are bound by Yugoslavia's treaty obligations under the UN Charter, the Geneva Conventions, Additional Protocols I and II, the Genocide Convention, the Torture Convention, and other international humanitarian law instruments. To similar effect, see Meron,War Crimes Trials supra note 33, at 129 (“The case for applying the grave breaches provisions to the Yugoslav conflict is strengthened by the fact that all states involved have agreed to honor the obligations of the former Yugoslavia under the Geneva conventions. All [these] states have also accepted the ‘Statement of Principles’ approved by the London Conference on Yugoslavia [in 1992], concerning compliance with international humanitarian law ...”).
See Secretary-General's, Report, supra note 5, The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808, (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. ¶¶ 125–126.
In S.C. Res. 827,supra note 5, The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. the Security Council[d]ecide[d] that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute[.] Statute,supra note 5, The Statute of the International Tribunal is set out as an annex toSecretary-General's Report, supra, and isreprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1192 [hereinafter Statute]. For background, see Peter Burns,The International Criminal Tribunal: The Difficult Union of Principle and Politics, in this issue ofCriminal Law Forum. art, 29, reiterates the obligation on states to cooperate and sets out a nonexhaustive list of areas in which assistance must be rendered: 1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; (e) the surrender or the transfer of the accused to the International Tribunal.
Grave breaches are listed in Geneva Convention I,supra note 32, art. 50; Geneva Convention II,supra note 32, Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. art. 51; Geneva Convention III,supra note 32, art. 130; Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. art. 147. The obligations on states with respect to punishing grave breaches are set out in Geneva Convention I,supra, art. 49; Geneva Convention II,supra, art. 50; Geneva Convention III,supra, art. 129; Geneva Convention IV,supra, art. 146. On the universality of jurisdiction over grave breaches of the Geneva Conventions, see 4Geneva Conventions: Commentary, supra note 41, 4The Geneva Conventions of 12 August 1949: Commentary 590 n.1, 594 (Jean S. Pictet gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66 and accompanying text. at 587; Claude Pilloud et al., International Comm. of the Red Cross,Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 975 (Yves Sandoz et al. eds., 1987). For a detailed discussion asserting universal jurisdiction over grave breaches of the Geneva Conventions, war crimes and crimes against humanity, genocide, and certain other infractions of international law, see Kenneth C. Randall,Universal Jurisdiction under International Law, 66 Tex. L. Rev. 785, 800–37 (1988).
Additional Protocol I,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. art. 85. Pilloud et al.,supra note 46, at 973, notes that Additional Protocol I,supra, arts. 85–91, “supplements the articles of the Convention relating to the repression of breaches, while extending the application of that system of repression to breaches of the Protocol.” In particular, Additional Protocol I supplements the list of grave breaches set out in the Geneva Conventions, and “acts described as grave breaches in the Conventions are grave breaches of the Protocol if they are committed against new categories of persons and objects protected under the Protocol.” Pilloud et al.,supra, at 977. Moreover, “grave breaches of the Conventions and the Protocol are qualified as war crimes.”Id. Grave breaches are listed in Geneva Convention I,supra note 32, art. 50; Geneva Convention II,supra note 32, art. 51; Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. Geneva Convention III,supra note 32, art. 130; Geneva Convention IV,supra note 14, art. 147. Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. The obligations on states with respect to punishing grave breaches are set out in Geneva Convention I,supra, art. 49; Geneva Convention II,supra, art. 50; Geneva Convention III,supra, art. 129; Geneva Convention IV,supra, art. 146. On the universality of jurisdiction over grave breaches of the Geneva Conventions, see 4Geneva Conventions: Commentary, supra note 41, at 587; 4The Geneva Conventions of 12 August 1949: Commentary 590 n.1, 594 (Jean S. Pictet gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66 and accompanying text; Claude Pilloud et al., International Comm. of the Red Cross,Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 975 (Yves Sandoz et al. eds., 1987). For a detailed discussion asserting universal jurisdiction over grave breaches of the Geneva Conventions, war crimes and crimes against humanity, genocide, and certain other infractions of international law, see Kenneth C. Randall,Universal Jurisdiction under International Law, 66 Tex. L. Rev. 785, 800–37 (1988).
Genocide Convention,supra note 34, art 6 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28) (considering Convention on the Prevention and Punishment of the Crime of Genocide,adopted Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]). Meron,Human Rights, supra note 26, at 20, agrees that Genocide Convention,supra, embodies customary law. (contemplating the possibility of trial by “such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its juridiction” or by “a competent Tribunal of the State in the territory of which the act was committed”);Crime of Genocide, supra 42, at 4. Noting that the convention contemplates the possibility of an international tribunal but does not actually set up such a body, Roger S. Clark,The Influence of the Nuremberg Trial on the Development of International Law, inThe Nuremberg Trial and International Law 249, 255–56 (George Ginsburgs & V.N. Kudriavtsev eds., 1990), suggests, to the contrary, that the convention seems to “point in the direction of a denial of universality to be exercised by individual states.”
Nuremberg Charter,supra note 20, art. 6(c); The International Military Tribunal at Nuremberg was established, pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, The Charter of the International Military Tribunal at Nuremberg is set out inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolumeTrial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945–1 October 1946. (1947–1949). For the judgment, see 22id. at 411 [hereinafter Nuremberg Judgment]. Draft Code,supra note 26, art. 21. The recognition of crimes against humanity as an international crime “signifies that specific mass violations of human rights do not belong any longer to the sphere of domestic jurisdiction. The international community is now legally entitled to intervene in such cases.” Röling & Cassese,supra note 27, at 56. William H. Parks,Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 69–70 (1973);see also Brownmiller,supra note 1, at 56–62. For the official transcript of the proceedings in United States v. Soema Toyoda, seeIMTFE Record of Proceedings, supra note 20. The Rape of Nanking trial is reported in 4 UN War Crimes Comm'n,Law Reports of Trials of War Criminals 87 (1947). On the International Military Tribunal for the Far East, see Richard H. Minear,Victors' Justice: The Tokyo War Crimes Trial (1971); Bert V.A. Röling, & Antonio Cassese,The Tokyo Trial and Beyond (1993);see also sources citedsupra note 20. The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis. The Charter of the International Military Tribunal at Nuremberg is set out inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolumeTrial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945–1 October 1946 (1947–1949). For the judgment, see 22id. at 411 [hereinafter Nuremberg Judgment].
In practical terms, this means, for example, that if rape and other sexual offenses constitute a grave breach under the Geneva Conventions, states are required to enact legislation providing for effective penal sanctions and to search out and punish (or extradite) suspected perpetrators. Seesupra note 46; Grave breaches are listed in Geneva Convention I,supra note 32., art. 50; Geneva Convention II,supra note 32, art. 51; Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949., 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. Geneva Convention III,supra note 32, art. 130; Geneva Convention IV,supra note 14, art. 147. Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. The obligations on states with respect to punishing grave breaches are set out in Geneva Convention I,supra, art. 49; Geneva Convention II,supra, art. 50; Geneva Convention III,supra, art. 129; Geneva Convention IV,supra, art. 146. On the universality of jurisdiction over grave breaches of the Geneva Conventions, see 4Geneva Conventions: Commentary, supra note 41, at 587; 4The Geneva Conventions of 12 August 1949: Commentary 590 n.1, 594 (Jean S. Pictet gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66 and accompanying text. Claude Pilloud et al. International Comm. of the Red Cross,Commentary on the Additional Protocols of 8 June, 1977 to the Geneva Conventions of 12 August 1949, at 975 (Yves Sandoz et al. eds., 1987). For a detailed discussion asserting universal jurisdiction over grave breaches of the Geneva, Conventions, war crimes and crimes against humanity, genocide, and certain other infractions of international law, see Kenneth. C. Randall,Universal Jurisdiction under International Law, 66 Tex. L. Rev. 785, 800–37 (1988). Bert V.A. Röling,Aspects of the Criminal Responsibility for Violations of the Laws of War, inThe New Humanitarian Law of Armed Conflict 199, 211 (Antonio Cassese ed., 1979). With regard to infractions of the Geneva Conventions and Protocols that are not grave breaches, states are required to take measures for their suppression but no duty arises to provide for punishment. Geneva Convention IV,supra note 14, art. 146; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug., 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. Additional Protocol I,supra note 37, art. 86(1). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II].
See, e.g. 4Geneva Conventions: Commentary, supra note 41, at 593 (discussing Geneva Convention IV, 4The Geneva Conventions of 12 August 1949: Commentary 590 n.1., 594 (Jean S. Pictet gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66 and accompanying text.supra note 14, art. 146(2)). Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV].
See Röling,supra note 50, at 212. Bert V.A. Röling,Aspects of the Criminal Responsibility for Violations of the Laws of War, inThe New Humanitarian Law of Armed Conflict 199, 211 (Antonio Cassese ed., 1979). For a dicussion of Hague Convention IV,supra note 18, seeinfra section entitled, “Violations of the Laws or Customs of War.”
Geneva Conventions I–IV,supra notes 14, 32, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75, U.N.T.S. 287 [hereinafter Geneva Convention IV]. Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S 287 [hereinafter Geneva Convention IV]. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. common art. 3; Additional Protocol II,supra note 37. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II].
See generally Howard S. Levie,The Law of Non-international Armed Conflict: Protocol II to the 1949 Geneva Conventions (1987).
Final Report, supra note 3, ¶ 42. Letter from the Secretary-General to the President of the Security Council, May 24, 1994, U.N. Doc. S/1994/674 (1994), transmittingFinal Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), available in U.N. Gopher/Current Information/Secretary-General's Reports [hereinafterFinal Report].
Paust,supra note 33, Theodor Meron,The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122, 129 [hereinafter Meron,War Crimes Trials], at 507, 506 (citations omitted). Seeinfra notes 96-98 and accompanying text.
See Meron,War Crimes Trials, supra note 33, Theodor Meron,The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122, 129 [hereinafter Meron,War Crimes Trials], at 128; Theodor Meron,Draft Model Declaration on Internal Strife, Int'l Rev. Red Cross, Jan–Feb. 1988, at 59; Denise Plattner,The Penal Repression of Violations of International Humanitarian Law Applicable in Non-international Armed Conflicts, Int'l Rev. Red Cross, Sept–Oct. 1990, at 409, 414. For further discussion, seeinfra section entitled “Noninternational Conflict.”
Statute,supra note 5, The Statute of the International Tribunal is set out as an annex toSecretary-General's Report, supra, and isreprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1192 [hereinafter Statute]. For background, see Peter Burns,The International Criminal Tribunal: The Difficult Union of Principle and Politics, in this issue ofCriminal Law Forum. art. 7(3).
Liability for acts of omission figured, for example, in the following World War II war crimes prosecutions. United States v. Pohl, in 5Trials of War Criminals, supra note 22, Case No. 4; United States v. Ohlendorf (Einsatzgruppen Case), in 4Trials of War Criminals, supra, Case No. 9; United States v. Soema Toyoda,discussed in Parks,supra note 27, at 69–73; United States v. Yamashita (1945), in 4 UN War Crimes Comm'n,supra note 27, at 1, 34,aff'd, 327 U.S. 1 (1946);see also Richard L. Lael,The Yamashita Precedent: War Crimes and Command Responsibility (1982).
Affirmation of Nuremberg Principlessupra note 36; Genocide Convention,supra note 34, art. 4; Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity art. 2, G.A. Res. 2391 (XXIII), U.N. GAOR, 23d Sess., Supp. No. 18, at 40, U.N. Doc. A/7218 (1968); Additional Protocol I,supra note 37, art 86(2); Frits Kalshoven, International. Comm. of the Red Cross,Constraints on the Waging of War 18–19 (1991); I.A. Lediakh,The Application of the Nuremberg Principles by Other Military Tribunals and National Courts, inThe Nuremberg Trial and International Law, supra note 48, Genocide Convention,supra note 34, art. 6 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28) (considering Convention on the Prevention and Punishment of the Crime of Genocide,adopted Dec. 9, 1948, 78 U.N.T.S 277 [hereinafter Genocide Convention]). Meron,Human Rights, supra note 26, at 20, agrees that Genocide Convention,supra, embodies customary law. (contemplating the possibility of trial by “such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction” or by “a competent Tribunal of the State in the territory of which the act was committed,”);Crime of Genocide, supra 42, at 4. Noting that the convention contemplates the possibility of an international tribunal but does not actually set up such a body, Roger S. Clark,The Influence of the Nuremberg Trial on the Development of International Law, inThe Nuremberg Trial and International Law 249, 255–56 (George Ginsburgs & V.N. Kudriavtsev eds., 1990), suggests, to the contrary, that the convention seems to “point in the direction of a denial of universality to be exercised by individual states.” at 263, 266–67.
Geneva Convention III,supra note 32, Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces, at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. art. 4(A)(2);see also Additional Protocol I,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. art, 43, 50; Pilloud et al.,supra note 46, Claude Pilloud et al., International Comm. of the Red Cross,Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 975 (Yves Sandoz et al. eds., 1987). at 517.
E.g., Geneva Convention IV,supra note 14, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. art. 146; Genocide Convention,supra note 34, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28) (considering Convention on the Prevention and Punishment of the Crime of Genocideadopted Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]). Meron,Human Rights, supra note 26, at 20, agrees that Genocide Conventionsupra, embodies customary law. art. 4; Additional Protocol I,supra note 37, Protocol Additional to the, Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. art. 86(2); Draft Code,supra, note 26,see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126. arts. 21–22. For a discussion, see 4Geneva Conventions: Commentary, supra note 41, 4The Geneva Conventions of 12 August 1949: Commentary 590 n.1, 594 (Jean S. Pictet gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population). [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66 and accompanying text. at 589–96; Cook,supra note 15,See R.J. Cook,Accountability in International Law for Violations of Women's Rights by Non-state Actors, inReconceiving Reality: Women and International Law 93, 104–05 (American Society of International Law Studies in Transnational Legal Policy No. 25, Dorinda G. Dallmeyer ed., 1993). at 98–99; Kalshovensupra note 60 Frits Kalshoven Internation, Comm. of the Red Cross,Constraints on the Waging of War 18–19 (1991); at 18–19; Röling,supra note 50, Bert V.A. Röling,Aspects of the Criminal Responsibility for Violations of the Laws of War, inThe New Humanitarian Law of Armed Conflict 199, 211 (Antonio Cassese ed., 1979). at 220–27.
Defined as “rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area.”Final Report, supra note 3, Letter from the Secretary-General to the President of the Security Council, May 24, 1994, U.N. Doc. S/1994/674 (1994), transmittingFinal Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), available in U.N. Gopher/Current Information/Secretary-General's Reports [hereinafterFinal Report]. ¶ 129 (quotingInterim Report, infra, ¶ 55);see also id. ¶ 128, 237. Letter from the Secretary-General to the President of the Security Council, Feb. 9, 1993, U.N. Doc. S/25274 (1993), transmittingInterim Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992).
Each of the conventions identifies a set of “particularly serious violations that qualify as ‘grave breaches’ or war crimes.”Secretary-General's Report, supra note 5, The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue of Criminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. ¶ 38. Seesupra note 46. Grave breaches are listed in Geneva Convention I,supra note 32, art. 50; Geneva Convention II,supra note 32 Geneva Convention IV,supra note 14 Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. art. 51; Geneva Convention III,supra note 32, art. 130; Geneva Convention IV,supra note 14, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. art. 147. The obligations on states with respect to punishing grave breaches are set out in Geneva Convention I,supra, art. 49; Geneva Convention II,supra, art. 50; Geneva Convention III,supra, art. 129; Geneva Convention IV,supra, art. 146. On the universality of jurisdiction over grave breaches of the Geneva Conventions, see 4Geneva Conventions: Commentary, supra note 41, 4The Geneva Conventions of 12 August 1949: Commentary 590 n.1, 594 (Jean S. Pictet gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66 and accompanying text. at 587; Claude Pilloud et al., International Comm. of the Red Cross,Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 975 (Yves Sandoz et al. eds., 1987). For a detailed discussion asserting universal jurisdiction over grave breaches of the Geneva Conventions, war crimes and crimes against humanity, genocide, and certain other infractions of international law, see Kenneth C. Randall,Universal Jurisdiction under International Law, 66 Tex. L. Rev. 785, 800–37 (1988).
4Geneva Conventions: Commentary, supra note 41, at 598, 594. (Jean S. Picter gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66 and accompanying text.
Id. 4Geneva Conventions: Commentary, supra at 594, 590 n.1. Seesupra note 41.
Torture Convention,supra note 26.see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126.
Id. art. 1. Torture Convention,supra note 26.see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126.
Meron,supra note 2,E.g., CSCE Rapporteurs (Corell-Turk-Thune), Moscow Human Dimension Mechanism to Bosnia, Herzegovina, and Croatia,Proposal for an International War Crimes Tribunal for the Former Yugoslavia (1993); Letter from the Permanent Representative of Sweden to the Secretary-General, Feb. 18, 1993, U.N. Doc. S/25307 (1993), annexing a summary of this report and the text of a decision by CSCE participating states on the report; Amnesty International,Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); Helsinki Watch,War Crimes in Bosnia-Herzegovina (1992); Theodor Meron, Editorial Comment,Rape as a Crime under International Humanitarian Law, 87 Am. J. Int'l L. 425 & n.6 (1993), at 425 (citing ICRC Aide-Mémoire).
Amnesty International,supra note 2,E.g., CSCE Rapporteurs (Corell-Turk-Thune), Moscow Human Dimension Mechanism to Bosnia, Herzegovina, and Croatia,Proposal for an International War Crimes Tribunal for the Former Yugoslavia (1993); Letter from the Permanent Representative of Sweden to the Secretary-General, Feb. 18, 1993, U.N. Doc. S/25307 (1993), annexing a summary of this report and the text of a decision by CSCE participating states on the report; Amnesty International,Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); Helsinki Watch,War Crimes in Bosnia-Herzegovina (1992); Theodor Meron, Editorial Comment,Rape as a Crime under International Humanitarian Law, 87 Am. J. Int'l L. 425 & n.6 (1993). at 2.
Rhonda Copelon,Surfacing Gender: Reconceptualizing Crimes against Women in Time of War, inMass Rape: The War against Women in Bosnia-Herzegovina 4 (Alexandra Stiglmayer ed., 1994). As notedsupra note 46-47, Grave breaches are listed in Geneva Convention I,supra note 32, art. 50; Geneva Convention II,supra Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV];supra note 14, art. 147, and Additional Protocol I,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. art. 85. The sole criterion that makes an offense a grave breach is that it must be “committed against persons or property protected by the Conventions.” Pilloud et al.,supra note 46, Claude Pilloud et al., International Comm. of the Red Cross,Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 975 (Yves Sandoz et al. eds., 1987). art. 976. Meron,War Crimes Trials, supra note 33, ar 131 (emphasis added), lists a number of offenses and states that they “would all be covered by war crimes under customary international law and by the grave breaches provisions of the Geneva Conventions. When committed on a mass scale, such violations would also give rise to charges of crimes against humanity and of genocide...” The italicized statement implies that crimes do not need to be committed on a mass scale to constitute grave breaches and other war crimes.
See Meron,supra note 2,E.g., CSCE Rapporteurs (Corell-Turk-Thune), Moscow Human Dimension Mechanism to Bosnia, Herzegovina, and Croatia,Proposal for an International War Crimes Tribunal for the Former Yugoslavia (1993); Letter from the Permanent Representative of Sweden to the Secretary-General, Feb. 18, 1993, U.N. Doc. S/25307 (1993), annexing a summary of this report and the text of a decision by CSCE participating states on the report; Amnesty International,Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); Helsinki Watch,War Crimes in Bosnia-Herzegovina (1992); Theodor Meron, Editorial Comment,Rape as a Crime under International Humanitarian Law, 87 Am. J. Int'l L. 425 & n.6 (1993). at 426 n.19.
“The Geneva Conventions constitute rules of international humanitarian law and provide the core of the customary law applicable ininternational armed conflicts. These Conventions regulate the conduct of war from the humanitarian perspective...”Secretary-General's Report, supra note 5, The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S. C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. ¶ 37 (emphasis added).
Final Report, supra note 3, Letter from the Secretary-General to the President of the Security Council, May 24, 1994, U.N. Doc. S/1994/674 (1994), transmittingFinal Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), available in U.N. Gopher/Current Information/Secretary-General's Reports [hereinafterFinal Report]. ¶ 42–44.
Secretary-General's Report, supra note 5, The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. ¶ 44.
“Such violations shall include, but not be limited to:...” Statute,supra note 5, The Statute of the International Tribunal is set out as an annex toSecretary-General's Report, supra, and isreprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1192 [hereinafter Statute]. For background, see Peter Burns,The International Criminal Tribunal: The Difficult Union of Principle and Politics, in this issue ofCriminal Law Forum. art. 3 (emphasis added).
Hague Convention IV,supra note 18, All these documents were influential in the preparation of both Hague Convention (II) with Respect to the Laws and Customs of War on Land, with Annexed Regulations, July 29, 1899, and Hague Convention (IV) Respecting the Laws and Customs of War on Land, with Annexed Regulations, Oct. 18, 1907 [hereinafter Hague Convention IV],reprinted in parallel columns in the Laws of Armed Conflicts, supra, at 63, art 46 (annex); Meron,supra note 2, at 425. Seesupra section entitled “Violence against Women from a Changing Social and Legal Perspective.”
See, e.g., 4Geneva Conventions: Commentary, supra note 41, 4The Geneva Conventions of 12 August 1949: Commentary 590 n.1, 594 (Jean S. Pictet gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary], Seeinfra note 66Id. at 594 n.1, Seesupra note 41. and accompanying text. at 199–201; Meron,Human Rights, supra note 26, For background, see Theodor Meron,Human Rights and Humanitarian Norms as Customary Law (1989) [hereinafter Meron,Human Rights]; Theodor Meron, Editorial Comment,War Crimes in Yugoslavia and the Development of International Law, 88 Am. J. Int'l L. 78 (1994) [hereinafter Meron,War Crimes in Yugoslavia]; Sydney L. Goldenberg,Crimes against Humanity, 1945–1970: A Study in the Making and Unmaking of International Criminal Law, 10 W. Ont. L. Rev. 1 (1971). at 47.
Additional Protocol I,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. art. 76(1) (singling out women as the “object of special respect”).
Pilloud et al.,supra note 46, Grave breaches are listed in Geneva convention I,supra note 32, art. 50; Geneva Convention II,supra note 32, Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. art. 51; Geneva Convention III,supra note 32, art. 130; Geneva Convention IV,supra note 14, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. art. 147. The obligations on states with respect to punishing grave breaches are set out in Geneva Convention I,supra, art. 49; Geneva Convention II,supra, art. 50; Geneva Convention III,supra, art. 129; Geneva Convention IV,supra, art. 146. On the universality of jurisdiction over grave breaches of the Geneva Conventions, see 4Geneva Conventions: Commentary, supra note 41, 4The Geneva Conventions of 12 August 1949: Commentary 590 n.1, 594 (Jean S. Pictet gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66Id. at 594, 590 n.1. Seesupra note 41. and accompanying text. at 587; Claude Pilloud et al., International Comm. of the Red Cross,Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 975 (Yves Sandoz et al. eds., 1987). For a detailed discussion asserting universal jurisdiction over grave breaches of the Geneva Conventions, war crimes and crimes against humanity, genocide, and certain other infractions of international law, see Kenneth C. Randall,Universal Jurisdiction under International Law, 66 Tex. L. Rev. 785, 800–37 (1988). at 892–93. The United States takes the position that Additional Protocol I,supra note 37, art. 75, embodies customary international law, although it has not ratified this instrument. For a detailed discussion of the U.S. position, see Levie,supra note 40; Meron,Human Rights, supra note 26, at 62–70. Levie,supra, at 470 n.4, lists all the articles the United States believes are declaratory of customary law.
Additional Protocol I,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II] art. 85(4)(c).
See Meron,supra note 2,E.g., CSCE Rapporteurs (Corell-Turk-Thune), Moscow Human Dimension Mechanism to Bosnia, Herzegovina, and Croatia,Proposal for an International War Crimes Tribunal for the Former Yugoslavia (1993); Letter from the Permanent Representative of Sweden to the Secretary-General, Feb. 18, 1993, U.N. Doc. S/25307 (1993), annexing a summary of this report and the text of a decision by CSCE participating states on the report; Amnesty International,Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); Helsinki Watch,War Crimes in Bosnia-Herzegovina (1992); Theodor Meron, Editorial Comment,Rape as a Crime under International Humanitarian Law, 87 Am. J. Int'l L. 425 & n.6 (1993).; Meron,War Crimes Trials, supra note 33,see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126. Sydney L. Goldenberg,Crimes against Humanity, 1945–1970: A Study in the Making and Unmaking of International Criminal Law, 10 W. Ont. L. Rev. 1 (1971). at 84. According to Paust,supra note 33, at 518, rape used as a tactic for purposes of ethnic cleansing “is covered by customary laws of war” (citing,e.g., Geneva Convention IV,supra note 32, Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. arts. 3, 16, 27, 31–33, 147; Additional Protocol I,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. arts. 51, 75, 76; Additional Protocol II,supra note 37, arts. 4, 13).See generally supra section entitled “Crimes of Violence of a Sexual Nature”;supra text accompanying notes 32-33, 37-40, 65-70.
Genocide Convention,supra note 34, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28) (considering Convention on the Prevention and Punishment of the Crime of Genocide,adopted Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]). Meron,Human Rights, supra note 26,see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126. Sydney L. Goldenberg,Crimes against Humanity, 1945–1970: A Study in the Making and Unmaking of International Criminal Law, 10 W. Ont. L. Rev. 1 (1971). at 20, agrees that Genocide Convention,supra, embodies customary law. art. 2.
Pilloud et al.,supra note 46, Claude Pilloud et al., International Comm. of the Red Cross,Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 975 (Yves Sandoz et al. eds., 1987). at 1001–02; Kalshoven,supra note 60, Frits Kalshoven, International Comm. of the Red Cross,Constraints on the Waging of War 18–19 (1991), at 22.
In particular, see Additional Protocol I,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. arts. 48, 51, 85(3)(a)-(b). Violation of this rule is a grave breach.Id. art. 85(3).
St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes' Weight, Dec. 11, 1868, 138 Consol. T.S. 297,reprinted in Documents on the Laws of War 30 (Adam Roberts & Richard Guelff eds., 2d ed. 1989); Protection of Civilian Populations against the Dangers of Indiscriminate Warfare, ICRC Res. XXVIII, inThe Laws of Armed Conflicts, supra note 18, Lieber's Code, a comprehensive set of principles governing the conduct of belligerents in enemy territory, was drafted for the Union forces in the U.S. Civil War. This was the first attempt to codify the customary law of warfare, and Lieber's Code became the basis for later efforts at codification on the international level. Francis Lieber, Instructions for the Government of Armies of the United States in the Field,promulgated Apr. 24, 1863, art. 44,reprinted in The Laws of Armed Conflicts 3 (Dietrich Schindler & Jiri Toman eds., 1988). The Oxford Manual was drafted by Gustave Moynier under the auspices of the Institute of International Law as a model for domestic legislation on the laws and customs of war. Laws of War on Land (Oxford Manual),adopted Sept. 9, 1880, art. 49,reprinted in The Law of Armed Conflicts, supra, at 35. A similar provision appears in the Declaration of Brussels, an early draft codification of the laws of war at the international level. Final Protocol and Project of an International Declaration Concerning the Laws and Customs of War, Aug. 27, 1874, art. 38,reprinted in The Laws of Armed Conflicts, supra, at 25 (demanding respect for “[f]amily honour and rights, and the lives and property of persons, as well as their religious convictions and their practice”). All these documents were influential in the preparation of both Hague Convention (II) with Respect to the Laws and Customs of War on Land, with Annexed Regulations, July 29, 1899, and Hague Convention (IV) Respecting the Laws and Customs of War on Land, with Annexed Regulations Oct. 18, 1907 [hereinafter Hague Convention IV],reprinted in parallel columns in The Laws of Armed Conflicts, supra, at 63, at 259; G.A. Res. 2444 (XXIII), U.N. GAOR, 23d Sess., Supp. No. 18, at 50 U.N. Doc. A/7218 (1968) (affirming ICRC Res. XXVIII). The United States takes the position that this General Assembly resolution embodies customary international law.See Meron,Human Rights, supra note 26, Rape and other forms of sexual assault can be caught by both conventional and customary law prohibitions on torture or other cruel, inhuman, or degrading treatment and on forced labor or enslavement—offenses that come within Nuremberg Charter,supra note 20, The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279. The Charter of the International Military Tribunal at Nuremberg is set out inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolumeTrial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945–1 October 1946 (1947–1949). For the judgment, see 22id. at 411 [hereinafter Nuremberg Judgment]. The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20,reprinted in 1 Benjamin Ferencz,Defining International Aggression 522 (1975). It operated pursuant to Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), 4 Bevans 21,reprinted in 1 Ferencz,supra, at 523. The proceedings are available on microfilm.Record of the Proceedings of the International Military Tribunal for the Far East, Tokyo, Japan (1946–1948) [hereinafterIMTFE Record of Proceedings]. Majority and dissenting opinions have been collected inThe Tokyo Judgment: The International Military Tribunal for the Far East, 29 April 1946–12 November 1948 (Bert V.A. Röling & Christiaan Frederik Rüter eds., 1977) [hereinafterTokyo Judgment]. For additional sources, seeinfra note 27. William H. Parks,Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 69–70 (1973);see also Brownmiller,supra note 1, Susan Brownmiller,Against Our Will: Men, Women, and Rape (1975); Theodor Meron,Henry's Wars and Shakespeare's Laws: Perspectives on the Law of War in the Later Middle Ages (1993). art. 6(c); Draft Code of Crimes against the Peace and Security of Mankind art. 21, inReport of the International Law Commission on Its Forty-third Session, U.N. GAOR, 46th Sess., Supp. No. 10, at 238, U.N. Doc. A/46/10 (1991) [hereinafter Draft Code]. A selective set of references follows. With regard to torture, see Universal Declaration of Human Rights art. 5, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948); Geneva Convention IV,supra note 14, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. arts. 3, 27, 32; International Convenant on Civil and Political Rights,adopted Dec. 19, 1966, art. 7, 999 U.N.T.S. 171; Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) [hereinafter Torture Convention];see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126. With regard to forced labor, see ILO Convention (No. 29) Concerning Forced or Compulsory Labour,adopted June 28, 1930, 39 U.N.T.S. 55 (as amended 1946); ILO Convention (No. 105) Concerning the Abolition of Forced Labour,adopted June 25, 1956, 320 U.N.T.S. 291; International Covenant on Civil and Political Rights,supra, art. 8. With regard to slavery, see Slavery Convention, Sept. 25, 1926, 60 L.N.T.S. 253; Protocol Amending the Slavery Convention of September 25, 1926,opened for signature Dec. 7, 1953, 212 U.N.T.S. 17; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery,adopted Sept. 7, 1956, 266 U.N.T.S. 3; Universal Declaration of Human Rights,supra, art. 4; International Covenant on Civil and Political Rights,supra, art. 8. For background, see Theodor Meron,Human Rights and Humanitarian Norms as Customary Law (1989) [hereinafter Meron,Human Rights]; Theodor Meron, Editorial Comment,War Crimes in Yugoslavia and the Development of International Law, 88 Am. J. Int'l L. 78 (1994) [hereinafter Meron,War Crimes in Yugoslavia]; Sydney L. Goldenberg,Crimes against Humanity, 1945–1970: A Study in the Making and Unmaking of International Criminal Law, 10 W. Ont. L. Rev. 1 (1971), at 69–70.
Additional Protocol I,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. arts 51(6), 76(1).
Geneva Convention IV,supra note 14, Geneva Convention Relative to the Protection of Civillian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. art. 33 (“No protected person may be punished for an offence he or she has not personally committed.”).Id. art. 4 defines protected persons as follows: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”
Final Report, supra note 3, Letter from the Secretary-General to the President of the Security Council, May 24, 1994, U.N. Doc. S/1994/674 (1994), transmittingFinal Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), available in U.N. Gopher/Current Information/Secretary-General's Reports [hereinafterFinal Report]. ¶ 63–66; Meron,Human Rights, supra note 26, Rape and other forms of sexual assault can be caught by both conventional and customary law prohibitions on torture or other cruel, inhuman, or degrading treatment and on forced labor or enslavement—offenses that come within Nuremberg Charter,supra note 20, The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279. The Charter of the International Military Tribunal at Nuremberg is set out inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolumeTrial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945–1 October 1946 (1947–1949). For the judgment, see 22id. at 411 [hereinafter Nuremberg Judgment]. The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20,reprinted in 1 Benjamin Ferencz,Defining International Aggression 522 (1975). It operated pursuant to Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), 4 Bevans 21,reprinted in 1 Ferencz,supra, at 523. The proceedings are available on microfilm.Record of the Proceedings of the International Military Tribunal for the Far East, Tokyo, Japan (1946–1948) [hereinafterIMTFE Record of Proceedings]. Majority and dissenting opinions have been collected inThe Tokyo Judgment: The International Military Tribunal for the Far East, 29 April 1946–12 November 1948 (Bert V.A. Röling & Christiaan Frederik Rüter eds., 1977) [hereinafterTokyo Judgment]. For additional sources, seeinfra note 27. art. 6(c); Draft Code of Crimes against the Peace and Security of Mankind art. 21, inReport of the International Law Commission on Its Forty-third Session, U.N. GAOR, 46th Sess., Supp. No. 10, at 238, U.N. Doc. A/46/10 (1991) [hereinafter Draft Code]. A selective set of references follows. With regard to torture, see Universal Declaration of Human Rights art 5, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948); Geneva Convention IV,supra note 14, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. arts. 3, 27, 32; International Covenant on Civil and Political Rights,adopted Dec. 19, 1966, art. 7, 999 U.N.T.S. 171; Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) [hereinafter Torture Convention];see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126. With regard to forced labor, see ILO Convention (No. 29) Concerning Forced or Compulsory Labour,adopted June 28, 1930, 39 U.N.T.S. 55 (as amended 1946); ILO Convention (No. 105) Concerning the Abolition of Forced Labour,adopted June 25, 1956, 320 U.N.T.S. 291; International Covenant on Civil and Political Rights,supra, art. 8. With regard to slavery, see Slavery Convention, Sept. 25, 1926, 60 L.N.T.S. 253; Protocol Amending the Slavery Convention of September 25, 1926,opened for signature Dec. 7, 1953, 212 U.N.T.S. 17; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery,adopted Sept. 7, 1956, 266 U.N.T.S. 3; Universal Declaration of Human Rights,supra, art. 4; International Covenant on Civil and Political Rights,supra, art. 8. For background, see Theodor Meron,Human Rights and Humanitarian Norms as Customary Law (1989) [hereinafter Meron,Human Rights]; Theodor Meron, Editorial Comment,War Crimes in Yugoslavia and the Development of International Law, 88 Am. J. Int'l L. 78 (1994) [hereinafter Meron,War Crimes in Yugoslavia]; Sydney L. Goldenberg,Crimes against Humanity, 1945–1970: A Study in the Making and Unmaking of International Criminal Law, 10 W. Ont. L. Rev. 1 (1971), at 47, identifies the prohibition on collective punishment and reprisal set out in Geneva Convention IV,supra note 14, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. art. 33, as embodying customary law.
Seesupra text accompanying notes 53-57. Geneva Conventions I-IV,supra notes 14, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. 32, Geneva Convention IV,supra note 14; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. common art. 3; Additional Protocol II,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II].See generally Howard S. Levie,The Law of Non-international Armed Conflict: Protocol II to the 1949 Geneva Conventions (1987).Final Report, supra note 3, Letter from the Secretary-General to the President of the Security Council, May 24, 1994, U.N. Doc. S/1994/674 (1994), transmittingFinal Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), available in U.N. Gopher/Current Information/Secretary-General's Reports [hereinafterFinal Report]. ¶ 42. Paust,supra note 33,Compare Meron,Human Rights, supra note 26, Rape and other forms of sexual assault can be caught by both conventional and customary law prohibitions on torture or other cruel, inhuman, or degrading treatment and on forced labor or enslavement—offenses that come within Nuremberg Charter,supra note 20, art. 6(c); Draft Code of Crimes against the Peace and Security of Mankind art. 21, inReport of the International Law Commission on Its Forty-third Session, U.N. GAOR, 46th Sess., Supp. No. 10, at 238, U.N. Doc. A/46/10 (1991) [hereinafter Draft Code]. A selective set of references follows. With regard to torture, see Universal Declaration of Human Rights art. 5, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948); Geneva Convention IV,supra note 14, arts. 3, 27, 32; International Covenant on Civil and Political Rights,adopted Dec. 19, 1966, art. 7, 999 U.N.T.S. 171; Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) [hereinafter Torture Convention];see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126. With regard to forced labor, see ILO Convention (No. 29) Concerning Forced or Compulsory Labour,adopted June 28, 1930, 39 U.N.T.S. 55 (as amended 1946); ILO Convention (No. 105) Concerning the Abolition of Forced Labour,adopted June 25, 1956, 320 U.N.T.S. 291; International Covenant on Civil and Political Rights,supra, art. 8. With regard to slavery, see Slavery Convention, Sept. 25, 1926, 60 L.N.T.S. 253; Protocol Amending the Slavery Convention of September 25, 1926,opened for signature Dec. 7, 1953, 212 U.N.T.S. 17; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery,adopted Sept. 7, 1956, 266 U.N.T.S. 3; Universal Declaration of Human Rights,supra, art. 4; International Covenant on Civil and Political Rights,supra, art. 8. For background, see Theodor Meron,Human Rights and Humanitarian Norms as Customary Law (1989) [hereinafter Meron,Human Rights]; Theodor Meron, Editorial Comment,War Crimes in Yugoslavia and the Development of International Law, 88 Am. J. Int'l L. 78 (1994) [hereinafter Meron,War Crimes in Yugoslavia]; Sydney L. Goldenberg,Crimes against Humanity, 1945–1970: A Study in the Making and Unmaking of International Criminal Law, 10 W. Ont. L. Rev. 1 (1971). at 46,with Theodor Meron,The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122, 129 [hereinafter Meron,War Crimes Trials], and Jordan J. Paust,Applicability of International Criminal Laws to Events in the Former Yugoslavia, 9 Am. U. J. Int'l. L. & Pol'y 449, 512 n.43 (1994) (“The nature of most portions of the Geneva Conventions are now viewed as customary law.”).See generally Meron,Human Rights, supra at 41–62; Theodor Meron,The Geneva Conventions as Customary Law, 81 Am. J. Int'l L. 348 (1987) at 507, 506 (citations omitted). Seeinfra notes 96-98 Pilloud et al.,supra note 46, Grave breaches are listed in Geneva Convention I,supra note 32, art. 50; Geneva convention II,supra note 32, Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. art. 51; Geneva Convention III,supra note 32, art. 130; Geneva Convention IV,supra note 14, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. art. 147. The obligations on states with respect to punishing grave breaches are set out in Geneva Convention I,supra, art. 49; Geneva Convention II,supra, art. 50; Geneva Convention III,supra, art. 129; Geneva Convention IV,supra, art. 146. On the universality of jurisdiction over grave breaches of the Geneva Conventions, see 4Geneva Conventions: Commentary, supra note 41, 4The Geneva Conventions of 12 August 1949: Commentary 590 n.1, 594 (Jean S. Pictet gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66Id. at 594, 590 n.l. Seesupra note 41. and accompanying text. at 587; Claude Pilloud et al., International Comm. of the Red Cross,Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 975 (Yves Sandoz et al. eds, 1987). For a detailed discussion asserting universal jurisdiction over grave breaches of the Geneva Conventions, war crimes and crimes against humanity, genocide, and certain other infractions of international law, see Kenneth C. Randall,Universal Jurisdiction under International Law, 66 Tex. L. Rev. 785, 800–37 (1988). at 1353–54 (discussing Additional Protocol II,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. art. 1). Meron,Human Rights, supra note 26, at 73 (citing Pilloud et al.,supra note 46, at 1340).Id. at 1340–42 (citations omitted) (emphasis added);see also Remarks by Madeleine Albright, Representative of the United States, U.N. SCOR, 48th Year, 3217th mtg. at 15, U.N. Doc. S/PV.3217 (1993) (“it is understood that the ‘laws or customs of war’ referred to in Article 3 [of the Tribunal's Statute] include all obligations under humanitarian law agreements in force in the territory of the former Yugoslavia at the time the acts were committed, including common article 3 of the 1949 Geneva Conventions, and the 1977 Additional Protocols to these Conventions”). and accompanying text.See Meron,War Crimes Trials, supra note 33, at. 128; Theodor Meron,Draft Model Declaration on Internal Strife, Int'l Rev. Red Cross, Jan.–Feb. 1988, at 59; Denise Plattner,The Penal Repression of Violations of International Humanitarian Law Applicable in Non-international Armed Conflicts, Int'l. Rev. Red Cross, Sept.–Oct. 1990, at 409, 414. For further discussion, seeinfra section entitled “Noninternational Conflict.”
Geneva Conventions I-IV,supra notes 14, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. 32, Geneva Convention IV,supra note 14; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. common art. 3(1)(a), (c).
Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 4, 114 (June 27) (citation omitted).
See Secretary-General's Report, supra note 5, The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S. C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add. 1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. ¶ 47 n.9.
Final Report, supra note 3, Letter from the Secretary-General to the President of the Security Council, May 24, 1994, U.N. Doc. S/1994/674 (1994), transmittingFinal Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), available in U.N. Gopher/Current Information/Secretary-General's Reports [hereinafterFinal Report]. ¶ 54.But see infra note 98.Id. at 1340–42 (citations omitted) (emphasis added);see also Remarks by Madeleine Albright, Representative of the United States, U.N. SCOR, 48th Year, 3217th mtg. at 15, U.N. Doc. S/PV.3217 (1993) (“it is understood that the ‘laws or customs of war’ referred to in Article 3 [of the Tribunal's Statute] include all obligations under humanitarian law agreements in force in the territory of the former Yugoslavia at the time the acts were committed, including common article 3 of the 1949 Geneva Conventions, and the 1977 Additional Protocols to these Conventions”).
Additional Protocol II,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. art. 1(1).
Pilloud et al.,supra note 46, Grave breaches are listed in Geneva Convention I,supra note 32, art. 50; Geneva Convention II,supra note 32, Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. Geneva Convention for Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. art 51; Geneva Convention III,supra note 32, art. 130; Geneva Convention IV,supra note 14, art 147. The obligations on states with respect to punishing grave breaches are set out in Geneva Convention I,supra, art. 49; Geneva Convention II,supra, art. 50; Geneva Convention III,supra, art. 129; Geneva Convention IV,supra, art. 146. On the universality of jurisdiction over grave breaches of the Geneva Conventions, see 4Geneva Conventions: Commentary, supra note 41, 4The Geneva Conventions of 12 August 1949: Commentary 590 n.l, 594 (Jean S. Picter gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66Id. at 594, 590 n.l. Seesupra note 41. at 587; Claude Pilloud et al., International Comm. of the Red Cross,Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at. 975 (Yves Sandoz et al. eds., 1987). For a detailed discussion asserting universal jurisdiction over grave breaches of the Geneva Conventions war crimes and crimes against humanity, genocide, and certain other infractions of international law, see Kenneth C. Randall,Universal Jurisdiction under International Law, 66 Tex. L. Rev. 785, 800–37 (1988). at 1353–54 (discussing Additional Protocol II,supra note 37, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. art. 1).
Meron,Human Rights, supra note 26, Rape and other forms of sexual assault can be caught by both conventional and customary law prohibitions on torture or other cruel, inhuman, or degrading treatment and on forced labor or enslavement—offenses that come within Nuremberg Charter,supra note 20, art. 6(c); Draft Code of Crimes against the Peace and Security of Mankind art. 21, inReport of the International Law Commission on Its Forty-third Session, U.N. GAOR, 46th Sess., Supp. No. 10, at. 238, U.N. Doc. A/46/10 (1991) [hereinafter Draft Code]. A selective set of references follows. With regard to torture, see Universal Declaration of Human Rights art. 5, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948); Geneva Convention IV,supra note 14, arts. 3, 27, 32; International Covenant on Civil and Political Rights,adopted Dec. 19, 1966, art. 7, 999 U.N.T.S. 171; Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) [hereinafter Torture Convention];see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126. With regard to forced labor, see ILO Convention (No. 29) Concerning Forced or Compulsory Labour,adopted June 28, 1930, 39 U.N.T.S. 55 (as amended 1946); ILO Convention (No. 105) Concerning the Abolition of Forced Labour,adopted June 25, 1956, 320 U.N.T.S. 291; International Covenant on Civil and Political Rights,supra, art. 8. With regard to slavery, see Slavery Convention, Sept. 25, 1926, 60 L.N.T.S. 253; Protocol Amending the Slavery Convention of September 25, 1926,opened for signature Dec. 7, 1953, 212 U.N.T.S. 17; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery,adopted Sept. 7, 1956, 266 U.N.T.S. 3; Universal Declaration of Human Rights,supra, art. 4; International Covenant on Civil and Political Rights,supra, art. 8. For background, see Theodor Meron,Human Rights and Humanitarian Norms as Customary Law (1989) [hereinafter Meron,Human Rights]; Theodor Meron, Editorial Comment,War Crimes in Yugoslavia and the Development of International Law, 88 Am. J. Int'l L. 78 (1994) [hereinafter Meron,War Crimes in Yugoslavia]; Sydney L. Goldenberg,Crimes against Humanity, 1945–1970: A Study in the Making and Unmaking of International Criminal Law, 10 W. Ont. L. Rev. 1 (1971). at 73 (citing Pilloud et al.,supra note 46, Grave breaches are listed in Geneva Convention I,supra note 32, art. 50; Geneva Convention II,supra note 32, Geneva Convention IV,supra note 14; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]. art. 51; Geneva Convention III,supra note 32, art. 130; Geneva Convention IV,supra note 14, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. art. 147. The obligations on states with respect to punishing grave breaches are set out in Geneva Convention I,supra, art. 49; Geneva Convention II,supra, art. 50; Geneva Convention III,supra, art. 129; Geneva Convention IV,supra, art. 146. On the universality of jurisdiction over grave breaches of the Geneva Conventions, see 4Geneva Conventions: Commentary, supra note 41, 4The Geneva Conventions of 12 August 1949: Commentary 590 n.l, 594 (Jean S. Pictet gen. ed., 1958) (citing Yugoslav Penal Code art. 125, which went beyond Geneva Convention IV,supra note 14, art. 147, in criminalizing the following offenses in fulfillment of the obligation underid. art. 146 to enact domestic legislation to punish grave breaches: forced change of nationality, forced conversion to another religion, forced prostitution, intimidation and terrorization, collective punishments, illegal detention in a concentration camp, and starving of the population) [hereinafterGeneva Conventions: Commentary]. Seeinfra note 66Id. at 594, 590 n.l. Seesupra note 41. and accompanying text. at 587; Claude Pilloud et al., International Comm. of the Red Cross,Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 975 (Yves Sandoz et al. eds., 1987). For a detailed discussion asserting universal jurisdiction over grave breaches of the Geneva Conventions, war crimes and crimes against humanity, genocide, and certain other infractions of international law, see Kenneth C. Randall,Universal Jurisdiction under International Law, 66 Tex. L. Rev. 785, 800–37 (1988). at 1340).
Id. at 1340–42 (citations omitted) (emphasis added);see also Remarks by Madeleine Albright, Representative of the United States, U.N.SCOR, 48th Year, 3217th mtg. at 15, U.N. Doc. S/PV.3217 (1993) (“it is understood that the ‘laws or customs of war’ referred to in Article 3 [of the Tribunal's Statute] include all obligations under humanitatrian law agreements in force in the territory of the former Yugoslavia at the time the acts were committed, including common article 3 of the 1949 Geneva Conventions, and the 1977 Additional Protocols to these Conventions”).
Statute,supra note 5, The Statute of the International Tribunal is set out as an annex toSecretary-General's Report, supra, and isreprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1192 [hereinafter Statute]. For background, see Peter Burns,The International Criminal Tributional: The Difficult Union of Principle and Politics, in this issue ofCriminal Law Forum. art. 4(2) (following Genocide Convention,supra note 34, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28) (considering Convention on the Prevention and Punishment of the Crime of Genocide,adopted Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]). Meron,Human Rights, supra note 26, at 20, agrees that Genocide Convention,supra, embodies customary law. art. 2).
Id. (following Genocide Convention,supra note 34, Statute,supra note 5, The Statute of the International Tribunal is set out as an annex toSecretary-General's Report, supra, and isreprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1192 [hereinafter Statute]. For background, see Peter Burns,The International Criminal Tributinal: The Difficult Union of Principle and Politics, in this issue ofCriminal Law Forum. art. 4(2) (following Genocide Convention,supra note 34, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28) (considering Convention on the Prevention and Punishment of the Crime of Genocide,adopted Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]). Meron,Human Rights, supra note 26, at 20, agrees that Genocide Convention,supra, embodies customary law. art. 2).
Id. art. 4(3). (following Genocide Convention,supra note 34, Statute,supra note 5. The Statute of the International Tribunal is set out as an annex toSecretary-General's Report, supra, and isreprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1192 [hereinafter Statute]. For background, see Peter Burns,The International Criminal Tribunal: The Difficult Union of Principle and Politics, in this issue ofCriminal Law Forum. art. 4(2) (following Genocide Convention,supra note 34, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28) (considering Convention on the Prevention and Punishment of the Crime of Genocide,adopted Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]). Meron,Human Rights, supra note 26, see Theodor Meron,Human Rights and Humanitarian Norms as as Customary Law (1989), at 20, The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279. The Charter of the International Military Tribunal at Nuremberg is set out inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolume Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945-1 October 1946 (1947–1949). For the judgment, see 22id. Allied Control Council Law No. 10, Dec. 20, 1945, art. II(1)(c), in Control Council for Germany, Official Gazette, Jan. 31, 1946, at 50,reprinted in Documents on Prisoners of War 304 (Naval War College International Law Studies Vol. 60, Howard S. Levie ed., 1979) (including “rape” under the heading of crimes against humanity as one of the “atrocities and offences”). On the nexus between this law and the Nuremberg Charter, see Frank C. Newman,United Nations Human Rights Covenants and the United States Government: Diluted Promises, Foreseeable Futures, 42 DePaul L. Rev. 1241, 1250–51 (1993); Diane F. Orentlicher,Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2587–90 (1991). The proceedings under Control Council Law No. 10 are reported in the multivolumeTrials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Nuernberg, October 1946-April 1949 (1949–1953) [hereinafterTrials of War Criminals]. As with Control Council Law No. 10, the International Military Tribunal for the Far East considered rape a war crime. 2Tokyo Judgment, supra note 20, at 965, 971–72, 988–89; 1id. at 385. For a discussion, see Meron,supra note 2, at 425–26.See generally infra section entitled “Aspects of Prosecution.” at 411 [hereinafter Nuremberg Judgment]. The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20,reprinted in 1 Benjamin Ferencz,Defining International Aggression 522 (1975). It operated pursuant to Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), 4 Bevans 21,reprinted in 1 Ferencz,supra, at 523. The proceedings are available on microfilm.Record of the Proceedings of the International Military Tribunal for the Far East, Tokyo, Japan (1946–1948) [hereinafterIMTFE Record of Proceedings]. Majority and dissenting opinions have been collected inThe Tokyo Judgment: The International Military Tribunal for the Far East, 29 April 1946–12 November 1948 (Bert V.A. Röling & Christiaan Frederik Rüter eds., 1977) [hereinafterTokyo Judgment]. For additional sources, seeinfra note 27. William H. Parks,Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 69–70 (1973);see also Brownmiller,supra note 1, at 56–62. For the official transcript of the proceedings in United States v. Soema Toyoda, seeIMTFE Record of Proceedings, supra note 20. The Rape of Nanking trial is reported in 4 UN War Crimes Comm'n,Law Reports of Trials of War Criminals 87 (1947). On the International Military Tribunal for the Far East, see Richard H. Minear,Victors' Justice: The Tokyo War Crimes Trial (1971); Bert V.A. Röling & Antonio Cassese,The Tokyo Trial and Beyond (1993);see also sources citedsupra note 20. art. 2).
Meron,War Crimes Trials, supra note 33, Theodor Meron,The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122, 129 [hereinafter Meron,War Crimes Trials], at 130.
Id. art. 5(g). Seesupra notes 19-22. The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.I (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis. The Charter of the International Military Tribunal at Nuremberg is set out inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolumeTrial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945-1 October 1946 (1947–1949). For the judgment, see 22id. at 411 [hereinafter Nuremberg Judgment]. The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20,reprinted in 1 Benjamin Ferencz,Defining International Aggression 522 (1975). It operated pursuant to Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended apr. 26, 1946), 4 Bevans 21,reprinted in 1 Ferencz,supra, at 523. The proceedings are available on microfilm.Record of the Proceedings of the International Military Tribunal for the Far East, Tokyo, Japan (1946–1948) [hereinafterIMTFE Record of Proceedings]. Majority and dissenting opinions have been collected inThe Tokyo Judgment: The International Military Tribunal for the Far East, 29 April 1946-12 November 1948 (Bert V.A. Röling & Christiaan Frederik Rüter eds., 1977) [hereinafterTokyo Judgment]. For additional sources, seeinfra note 27. William H. Parks,Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 69–70 (1973);see also Brownmiller,supra note 1, at 56–62. For the official transcript of the proceedings in United States v. Soema Toyoda, seeIMTFE Record of Proceedings, supra note 20. The Rape of Nanking trial is reported in 4 UN War Crimes Comm'n,Law Reports of Trials of War Criminals 87 (1947). On the International Military Tribunal for the Far East, see Richard H. Minear,Victors'Justice: The Tokyo War Crimes Trial (1971); Bert V.A. Röling & Antonio Cassese,The Tokyo Trial and Beyond (1993);see also sources citedsupra note 20.See Egon Schwelb,Crimes against Humanity, 23 Brit. Y.B. Int'l L. 178, 191 (1946). Allied Control Council Law No. 10, Dec. 20, 1945, art. II(1)(c), in Control Council for Germany, Official Gazette, Jan. 31, 1946, at 50,reprinted in Documents on Prisoners of War 304 (Naval War College International Law Studies Vol. 60, Howard S. Levie ed., 1979) (including “rape” under the heading of crimes against humanity as one of the “atrocities and offences”). On the nexus between this law and the Nuremberg Charter, see Frank C. Newman,United Nations Human Rights Covenants and the United States Government: Diluted Promises, Foreseeable Futures, 42 DePaul L. Rev. 1241, 1250–51 (1993); Diane F. Orentlicher,Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2587–90 (1991). The proceedings under Control Council Law No. 10 are reported in the multivolumeTrials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Nuernberg, October 1946-April 1949 (1949–1953) [hereinafterTrials of War Criminals]. As with Control Council Law No. 10, the International Military Tribunal for the Far East considered rape a war crime. 2Tokyo Judgment, supra note 20, at 965, 971–72, 988–89; 1id. at 385. For a discussion, see Meron,supra note 2, at 425–26.See generally infra section entitled “Aspects of Prosecution.” Theodor Meron,The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122, 129 [hereinafter Meron,War Crimes Trials], at 130 and accompanying text.
Secretary-General's Report, supra note 5, The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.I (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. ¶ 48.
Id. Secretary-General's Report, supra note 5, The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.I (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report]. ¶ 47 (“Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committedin an armed conflict, international or internal in character.”) (citation omitted) (emphasis added);see also id. n.9.
Draft Code,supra note 26, Rape and other forms of sexual assault can be caught by both conventional and customary law prohibitions on torture or other cruel, inhuman, or degrading treatment and on forced labor or enslavement—offenses that come within Nuremberg Charter,supra note 20, art. 6(c); Draft Code of Crimes against the Peace and Security of Mankind art. 21, inReport of the International Law Commission on Its Forty-third Session, U.N. GAOR, 46th Sess., Supp. No. 10, at 238, U.N. Doc. A/46/10 (1991) [hereinafter Draft Code]. A selective set of references follows. art. 21; Mc Cormack & Simpson,supra note 39,The International Law Commission's Draft Code of Crimes against the Peace and Security of Mankind: An Appraisal of the Substantive Provisions, 5 Crim. L.F. 1, 37 (1994), at 15.See generally M. Cherif Bassiouni,Crimes against Humanity in International Criminal Law 248 (1992); Yougindra Khushalani,Dignity and Honour of Women as Basic and Fundamental Human Rights 32 (1982); Christiaan Frederik Rüter,Enkele aspecten van de strafrechtelijke reactie op oorlogsmisdrijven en misdrijven tegen de menselijkheid 37–38 (1973). Seesupra note 26 Rape and other forms of sexual assault can be caught by both conventional and customary law prohibitions on torture or other cruel, inhuman, or degrading treatment and on forced labor or enslavement— offenses that come within Nuremberg Charter,supra note 20, The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279. The Charter of the International Military Tribunal at Nuremberg is set out inid. at 284 [hereinafter Nuremberg Charter]. The proceedings are reported in the multivolume Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945–1 October 1946 (1947–1949). For the judgment, see 22id. at 411 [hereinafter Nuremberg Judgment]. art. 6(c); Draft Code of Crimes against the Peace and Security of Mankind art. 21, inReport of the International Law Commission on Its Forty-third Session, U.N. GAOR, 46th Sess., Supp. No. 10, at 238, U.N. Doc. A/46/10 (1991) [hereinafter Draft Code]. A selective set of references follows. With regard to torture, see Universal Declaration of Human Rights art. 5, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948); Geneva Convention IV,supra note 14, arts. 3, 27, 32; International Convenant on Civil and Political Rights,adopted Dec. 19, 1966, art. 7, 999 U.N.T.S. 171; Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Suppl. No. 51, at 197, U.N. Doc. A/39/51 (1984) [hereinafter Torture Convention];see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done, Nov. 26, 1987, Europ. T.S. 126. With regard to forced labor, see ILO Convention (No. 29) Concerning Forced or Compulsory Labour,adopted June 28, 1930, 39 U.N.T.S. 55 (as amended 1946); ILO Convention (No. 105) Concerning the Abolition of Forced Labour,adopted June 25, 1956, 320 U.N.T.S. 291; International Convenant on Civil and Political Rights,supra, art. 8. With regard to slavery, see Slavery Convention, Sept. 25, 1926, 60 L.N.T.S. 253; Protocol Amending the Slavery Convention of September 25, 1926,opened for signature Dec. 7, 1953, 212 U.N.T.S. 17; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery,adopted Sept. 7, 1956, 266 U.N.T.S. 3; Universal Declaration of Human Rights,supra, art. 4; International Covenant on Civil and Political Rights,supra, art. 8. For background, see Theodor Meron,Human Rights and Humanitarian Norms as Customary Law (1989) [hereinafter Meron,Human Rights]; Theodor Meron, Editorial Comment,War Crimes in Yugoslavia and the Development of International Law, 88 Am. J. Int'l L. 78 (1994) [hereinafter Meron,War Crimes in Yugoslavia] Sydney L. Goldenberg,Crimes against Humanity, 1945–1970: A Study in the Making and Unmaking of International Criminal Law, 10 W. Ont. L. Rev. 1 (1971) and accompanying text.
For further discussion, seeFinal Report, supra note 3, Letter from the Secretary-General to the President of the Security Council, May 24, 1994, U.N. Doc. S/1994/674 (1994), transmittingFinal Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), available in U.N. Gopher/Current Information/Secretary-General's Reports [hereinafterFinal Report], ¶ 77; Copelon,supra note 71, at 7; Goldenberg,supra note 26 Sydney L. Goldenberg,Crimes against Humanity, 1945–1970: A Study in the Making and Unmaking of International Criminal Law 10 W. Ont. L. Rev. 1 (1971), at 48–49; Schwelb,supra not 21,See Egon Schwelb,Crimes against Humanity, 23 Brit. Y.B. Int'l L. 178, 191 (1946), at 191.
Secretary-General's Report, supra note 5, The Security Council set up the International Tribunal through S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andavailable in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N.Doc. S/RES/827 (1993),reprinted in appendix A of this issue ofCriminal Law Forum andin 32 I.L.M. 1203. In this connection, seeReport of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993) U.N. Doc. S/25704 & Add. 1 (1993),reprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1163 [hereinafterSecretary-General's Report], ¶ 48;see 2 Pieter Nicolaas Drost,The Crime of State: Penal Protection for Fundamental Freedoms of Persons and Peoples 33, 81–84 (1959).
The most recent amendments of the Tribunal's Rules of Procedure and Evidence in January 1995 added a provision that will support a finding of state involvement where the government in question has not been recognized by the international community: “State: A State Member or non-Member of the United Nations or a self-proclaimed entityde facto exercising governmental functions, whether recognised as a State or not.” International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Rules of Procedure and Evidence R. 2(A), U.N. Doc. IT/32 (1994),amended by U. N. Doc. IT/32/Rev.1 (1994), U.N. Doc. IT/32/Rev.2 (1994), U.N. Doc. IT/Rev.3 (1995),reprinted in appendix C of this issue ofCriminal Law Forum.
See Rüter,supra note 106 Christiaan Frederik Rüter,Enkele aspecten van de strafrechtelijke reactie op oorlogsmisdrijven en misdrijven tegen de menselijkheid 37–38 (1973), at 37–38; Goldenberg,supra note 26see also European Convention for the Protection of Human Rights and Fundamental Freedoms,opened for signature Nov. 4, 1950, art. 3, Europ. T.S. 5; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,done Nov. 26, 1987, Europ. T.S. 126, at 19, 48–49.
See generally M. Cherif Bassiouni,The Commission of Experts Established pursuant to Security Council Resolution 780 (1992): Investigating Violations of International Humanitarian Law in the Former Yugoslavia, in this issue ofCriminal Law Forum; Burns,supra note 5, The Statute of the International Tribunal is set out as an annex toSecretary-General's Report, supra, and isreprinted in appendix B of this issue ofCriminal Law Forum andin 32 I.L.M. 1192 [hereinafter Statute]. For background, see Peter Burns,The International Criminal Tribunal: The Difficult Union of Principle and Politics, in this issue ofCriminal Law Forum.
The Tribunal finalized Rules of Procedure and Evidence in early 1994 but amended them several times since then. Seesupra not 109 The most recent amendments of the Tribunal's Rules of Procedure and Evidence in January 1995 added a provision that will support a finding of state involvement where the government in question has not been recognized by the international community: “State: A State Member or non-Member of the United Nations or a self-proclaimed entityde facto exercising governmental functions, whether recognised as a State or not.” International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Rules of Procedure and Evidence R. 2(A), U.N. Doc. IT/32 (1994),amended by U.N. Doc. IT/32/Rev.1 (1994), U.N. Doc. IT/32/Rev.2 (1994), U.N. Doc. IT/Rev.3 (1995),reprinted in appendix C of this issue ofCriminal Law Forum. Rule 96(iii) was added in January 1995 in U.N. Doc. IT/Rev.3 (1995),supra note 109.
Seesupra notes 109, 112. The most recent amendments of the Tribunal's Rules of Procedure and Evidence in January 1995 added a provision that will support a finding of state involvement where the government in question has not been recognized by the international community: “State: A State Member or non-Member of the United Nations or a self-proclaimed entityde facto exercising governmental functions, whether recognised as a State or not.” International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Rules of Procedure and Evidence R. 2(A), U.N. Doc. IT/32 (1994),amended by U.N. Doc. IT/32/Rev.1 (1994), U.N. Doc. IT/32/Rev.2 (1994), U.N. Doc. IT/Rev.3 (1995),reprinted in appendix C of this issue ofCriminal Law Forum.
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Editor's note: research for this article was updated through December 31, 1994. As this article went to press, revisions reflecting a few of the amendments made in January 1995 to the Tribunal's Rules of Procedure and Evidence were added.
Professor of Criminal Law and Criminal Procedure, and Head, Department of Criminal Law and Criminology, Erasmus University of Rotterdam; Ad Hoc Judge, Court of Appeal, Rotterdam, Netherlands; J.D., University of Nijmegen 1978; Ph.D., University of Leiden 1989. The author was a member of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992).
Staff member, Bureau HALT (government diversion program for juvenile delinquents), the Hague; Assistant to Menno Kamminga, Professor of Public International Law, Erasmus University of Rotterdam, Rotterdam, Netherlands; J.D., Erasmus University of Rotterdam 1990.
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Cleiren, C.P.M., Tijssen, M.E.M. Rape and other forms of sexual assault in the armed conflict in the Former Yugoslavia: Legal, procedural, and evidentiary issues. Crim Law Forum 5, 471–506 (1994). https://doi.org/10.1007/BF01683226
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DOI: https://doi.org/10.1007/BF01683226