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Perišić: The Prosecutor v. Momčilo Perišić

Judgment (public with confidential annex c), 6 Sep 2011, International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber I, The Netherlands

Momčilo Perišić was a high-level military officer in the Yugoslav Army, which provided assistance both through sending weapons and through paying the salaries of the officers of the Army of Republika Srpska (VRS) and that of the Serbian Krajina (SVK). 

Three incidents were relevant for the purposes of his trial. The shelling and sniping in Sarajevo, the invasion of the town of Srebrenica, both perpetrated by the VRS, and the SVK's attacks in Zagreb.

The Chamber found Perišić guilty as aider and abettor to war crimes and crimes against humanity for his role in the incidents in Sarajevo and Srebrenica. 

The Chamber found him not guilty for his failure to punish the acts of the VRS in Sarajevo and Srebrenica due to the lack of his effective control over the conduct of the VRS. 

However, he was found guilty for the failure to punish the criminal behavior of the SVK, over the conduct of which he did possess effective control. Perišić was sentenced to 27 years of imprisonment.


American Civil Liberties Union v. Department of Justice: American Civil Liberties Union et al. v. Department of Justice et al.

Memorandum Opinion, 9 Sep 2011, United States District Court for the District of Columbia, United States

Unmanned aerial vehicles, more commonly known as drones, are remote-controlled, unmanned planes that can be operated from anywhere in the world by pilots located thousands of miles away from the drone. Specific individuals can be targeted and fired upon from thousands of miles away.

Amidst reports that the United States Armed Forces and the Central Intelligence Agency (CIA) are using drone strikes to target suspected terrorists in Afghanistan, Pakistan and Yemen, the non-profit organisation, the American Civil Liberties Union (ACLU) filed a request with the US Departments of State, Defense and Justice, as well as the CIA under the Freedom of Information Act seeking access to records about the US drone program as well as its legal basis under domestic and international law. Faced with a refusal from the CIA to even confirm or deny the existence of such records, the ACLU filed a lawsuit before the United States District Court for the District of Columbia. The Court held, however, that the CIA’s refusal to confirm or deny the existence of such records falls within the exemptions to disclosure outlined by the Freedom of Information Act because such records pertain to national security and are protected from disclosure by the Central Intelligence Agency Act of 1949 and the National Security Act of 1947.

The decision is presently on appeal before the United States Court of Appeals for the District of Columbia Circuit.


Silan et al. v. The Netherlands: Wisah Binti Silan et al. v. The State of The Netherlands (Ministry of Foreign Affairs)

Judgment (Court ruling), 14 Sep 2011, District Court of The Hague, The Netherlands

The District Court of The Hague ruled that the Dutch State acted unlawfully by executing a large amount of the male population in Rawagedeh without trial on 9 December 1947, during the Indonesian War for Independence. It required the Dutch State to award compensations to plaintiffs 1 to 7, but not to plaintiff 8 and the Foundation.

This was a landmark ruling, as it marked the first time that the Dutch government has been held responsible by a court for a committed massacre. On 9 December 2011, the Dutch government publicly apologised to Indonesia for the massacre through Tjeerd de Zwaan, the Dutch ambassador in Indonesia. None of the soldiers involved in the massacre have ever been prosecuted. Both sides have given different estimations regarding the amount of people killed, with the Netherlands stating that 150 people were killed, whereas the victims’ association puts this number as high as 431.


Al-Quraishi v. Nakhla (Appeal): Wissam Abdullateff Sa’eed Al-Quraishi, Plaintiff-Appellee v. L-3 Services, Defendant-Appellant and Adel Nakhla, et al., Defendants; and Wissam Abdullateff Sa’eed Al-Quraishi, Plaintiff-Appellee v. Adel Nakhla, Defendant-Appellant and L-3 Services, et al., Defendants.

Opinion, 21 Sep 2011, United States Court of Appeals for the Fourth District, United States

Following the 2003 invasion of Iraq, the U.S. military took control of the Abu Ghraib prison located near Baghdad, using it to detain criminals, enemies of the provisional government, and other persons thought to possess information regarding the anti-Coalition insurgency. The U.S. contracted with CACI International, Incorporated (with CACI Premier Technology, Incorporated, together referred to as CACI), and Titan Corporation, now L-3 Services, Incorporated (L-3), to provide civilian employees to assist the military in communicating with and interrogating the latter group of detainees. The use of these contractors has led to certain controversy, mainly because of multiple instances where they ended up torturing or unlawfully killing people. These practices led to three big law suits by groups of Iraqis who had allegedly been tortured in prisons guarded and/or maintained by private contractors: Saleh v. Titan Corp., Al-Shimari v. CACI Inc. and Al-Quraishi v. Nakhla & L-3 Inc.

The current case revolves around L-3, a U.S. company that was hired to provide civilian translators of Arabic in connection with military operations. These translators worked at, among other places, military prisons and detention facilities in Iraq, such as the Abu Ghraib prison – notorious for the torturing of detainees – just outside of Baghdad. Adel Nakhla, a US citizen from Egyptian origin, was one of the translators working for L-3 at the Abu Ghraib prison. Plaintiffs – 72 Iraqis who were arrested between July 2003 and May 2008 by coalition forces and held for periods varying from less than a month to more than four years at various military-run detention facilities in Iraq, including the Abu Ghraib prison – alleged that they were innocent and that they were eventually released from custody without being charged with any crimes. They filed a complaint before the U.S. District Court for Maryland, accusing L-3 and its employees (including Nakhla) of war crimes, torture and other (systematic) maltreatment committed against them during their custody. These abuses included beatings, hanging by the hands and feet, electrical shocks, mock executions, dragging across rough ground, threats of death and rape, sleep deprivation, abuse of the genitals, forced nudity, dousing with cold water, stress positions, sexual assault, confinement in small spaces, and sensory deprivation. They also allege that their individual mistreatment occurred as part of a larger conspiracy involving L-3 and its employees, certain members of the military, and other private contractors. L-3 and Nakhla responded with motions to dismiss, arguing that they were immune from prosecution and, relying on the political question doctrine, that the Court had no competence to hear the complaint. The Court rejected the motions on 29 June 2010, noting that the alleged behaviour violated national and international law and that defendants, who were private contractors, could not rely on the political question doctrine. The case was deferred for further review under Iraqi law.

Defendants appealed the decision to reject their motions, to which plaintiffs responded that U.S. appeals courts have no jurisdiction to rule on their appeals since the underlying case was not decided yet. The U.S. Court of Appeals for the Fourth District disagreed: it found that the current issue was of great public importance so that, since the District Court had given a final decision on defendants’ immunity, it was entitled to jurisdiction. Now that it could exercise jurisdiction, the Court of Appeals quashed the District Court’s decision in its entirety and remanded it with instructions for dismissal of plaintiffs’ claim.


Setako: Ephrem Setako v. the Prosecutor

Judgement, 28 Sep 2011, International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania

On 25 February 2010, Trial Chamber I of the ICTR convicted Lieutenant Colonel Ephrem Setako for genocide, extermination as a crime against humanity and violence to life as a war crime for ordering the killings of between 30 to 40 ethnic Tutsi refugees at Mukamira military camp on 25 April 1994 and the death of nine or 10 Tutsis on 11 May 1994. The Chamber imposed on  Setako a sentence of 25 years of imprisonment.

Setako and the Prosecution both appealed the Trial judgment. Setako alleged errors of law and errors of fact of the judgment. The Prosecution submitted three grounds of appeal.

On 28 September 2011, the Appeals Chamber dismissed Setako’s appeal in its entirety, while it partially granted the Prosecution’s appeal but it did not increase Setako’s sentence. Specifically, the Appeals Chamber convicted Setako for murder as a war crime for the killings committed against Tutsis on 11 May 1994.


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