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Ayyash et al.: The Prosecutor v. Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi and Assad Hasan Sabra
Interlocutory decision on the applicable law: terrorism, conspiracy, homicide, perpetration, cumulative charging, 16 Feb 2011, Special Tribunal for Lebanon (Appeals Chamber), The Netherlands
On 14 February 2005, a bomb in downtown Beirut exploded, killing 22 people, including the former Prime Minister of Lebanon, Rafik Hariri. The Special Tribunal for Lebanon was established by the Security Council in order to prosecute persons responsible for the bombing.
In its interlocutory decision, the Appeals Chamber interpreted the STL Statute to require application of substantive Lebanese law as applied by Lebanese courts, but not before noting that binding international obligations, including customary international law, should inform any such interpretation. The Appeals Chamber held, inter alia, that not only does a customary rule exists between states to suppress terrorist act, but that terrorism is an individual international crime under customary law.
The Special Tribunal for Lebanon Appeals Chamber examined state practice and binding international covenants to assert that the crime of terrorism is “commonly accepted at the international level.” As such, the Chamber derived the key components in formulating a general definition of terrorism: (1) the perpetration of a criminal act; (2) the intent to spread fear among the population or coerce a national or international authority to take some action; (3) and the act involves a transnational element. For the first time, a tribunal of international character has established the existence of a customary rule of international law recognizing an international crime of terrorism in times of peace.
Katanga: The Prosecutor v. Germain Katanga
Judgment, 7 Mar 2014, International Criminal Court (Trial Chamber II), The Netherlands
Between 1999 and 2003, Ituri (Democratic Republic of Congo - DRC) was the scene of a violent conflict between the Lendu, Ngiti and Hema ethnic groups. The Hema-dominated Union of Congolese Patriots (UPC) seized control of Bunia, the district capital, in August 2002. On the road between Bunia and the border with Uganda lies the strategically important town of Bogoro, with a UPC military camp in the middle of the town. On 24 February 2003 a Ngiti militia attacked Bogoro, aiming to drive out or eliminate the UPC camp as well as the Hema population. Numerous civilians were murdered and/or raped and the town was partly destroyed.
During this time, Germain Katanga was President of the Ngiti militia and Commander or Chief of Aveba. As such, he formally exercised authority over the attackers; therefore he was indicted by the ICC for participating in the crimes against humanity and war crimes committed during the Bogoro attack.
The Trial Chamber found that Katanga, while formally President, did not have full operational command over all fighting forces and commanders. Therefore he was acquitted of some of the crimes committed. However, since he had provided indispensable logistical aid (providing arms and transportation), he had enabled the militia to commit the crimes. He knew of their intent and intentionally contributed to the perpetration of the crimes; as such, the Chamber found him guilty, as accessory, of the crime against humanity of murder and the war crimes of murder, attacking a civilian population, destruction of property and pillaging.
On 23 May 2014, the Court sentenced Katanga to 12 years' imprisonment with credit for time served in the ICC's detention centre, approximately 7 years.
Thirith: The Prosecutor v. Ieng Thirith
Judgment yet to come, Extraordinary Chambers in the Courts of Cambodia, Cambodia
After the fall of the Cambodian government in 1975, the Communist Party, under the leadership of Pol Pot, came to power and renamed the State the Democratic Kampuchea. An armed conflict broke out with Vietnam, which lasted until 1979. From 1975 until 1979, Pol Pot and the Communist Party of Kampuchea sought to establish a revolutionary State and introduced a policy of ‘smashing’ their enemies, a form of physical and psychological destruction that consisted of arbitrary detention, torture and execution. This policy lead to the deaths of an estimated two million people.
The Accused, Ieng Thirith, was the highest-ranking female in the regime, Pol Pot’s sister-in-law and the wife of Ieng Sary, the regime’s former Foreign Minister. Ieng Thirith was indicted in 2010 on charges of war crimes, crimes against humanity and genocide for her role in the events. In September 2012, on the basis of repeated examinations by multiple medical experts, the Extraordinary Chambers in the Courts of Cambodia found the now 80-year-old Ieng Thirith unfit to stand trial due to her dementia and released her subject to certain conditions. Although the charges have not been withdrawn, a trial is unlikely to happen in the future considering her age and mental state.
Filartiga v. Peña-Irala: Dolly M.E. Filartiga and Joel Filartiga v. Americo Norberto Peña-Irala
Opinion, 30 Jun 1980, Court of Appeals, Second Circuit, United States
The Filártiga family, Dolly and Dr. Joel Filártiga, Paraguay nationals, claim that on 29 March 1976, Dr. Filártiga’s seventeen-year-old son Joelito Filártiga was kidnapped and tortured to death by the Inspector General of Police in Asuncion at that time, Américo Norberto Peña-Irala (Peña). They claim that Joelito was maltreated because his father was a longstanding opponent of the government of Paraguayan President Alfredo Stroessner who ruled over the country since 1954.
In 1978, Joelito’s sister Dolly Filártiga and (separately) Américo Peña came to the United States. Dolly applied for political asylum, while Peña stayed under a visitor's visa. Dolly learned of Peña's presence in the United States and reported it to the Immigration and Naturalization Service, who arrested and ordered the deportation of Peña for staying well past the expiration of his visa.
Immediately after, on 6 April 1979, the Filártiga family filed a complaint before US courts alleging that Peña had wrongfully caused Joelito's death by torture and seeking compensatory and punitive damages of $ 10,000,000. In support of federal jurisdiction, the Filártiga family relied on the Alien Tort Claims Act, a federal statute of 1789. They also sought to enjoin Peña’s deportation to ensure his availability for testimony at trial. The District Court for the Eastern District of New York dismissed the case on the grounds that subject matter jurisdiction was absent and for forum non conveniens, but on appeal the Filártiga family succeeded: the Court of Appeal, Second Circuit, ruled that even though the Filártiga family did not consist of US nationals and that the crime was committed outside the US, the family was allowed to bring a claim before US courts. It held that torture was a violation of the laws of nations and that federal jurisdiction was provided.
Finta: R. v. Imre Finta
Judgment, 24 Mar 1994, Supreme Court of Canada, Canada
Hungary joined the Axis powers during World War II, effectively bringing the Hungarian police and the Gendarmerie, a paramilitary police unit, under the control and direction of the German SS. Imre Finta, originally a Hungarian national, was an officer and later a captain in the Hungarian Gendarmerie. In 1944, he was dispatched to Szeged to implement the Baky Order, a decree introduced by the Hungarian Ministry of the Interior calling for the isolation, exporpriation, ghettoization, concentration, entrainment and eventual deportation of all Hungarian Jews. In connection with this order, Finta was allegedly responsible for the detention of 8 617 Hungarian Jews in brickyard, forcibly stripping them of their valuables and deporting them to concentration camps under appalling conditions.
Under new Canadian war crimes legislation, Finta (a Canadian national and resident since 1956) was brought before the Toronto court to stand trial for eight counts of war crimes and crimes against humanity. He was acquitted by a jury and this decision was upheld by a majority of the Court of Appeal of Ontario. The present decision was rendered by the Supreme Court of Canada and constituted the final appeal in the case against Finta. By a narrow margin of 4:3, the appeal was dismissed, as Finta did not possess the necessary mens rea for war crimes and crimes against humanity and the Baky Order, on which he relied, did not appear as manifestly unlawful at the time of its enactment.
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