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Gotovina & Markač: Prosecutor v. Ante Gotovina and Mladen Markač

Judgement, 16 Nov 2012, International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber, The Netherlands

In August 1995, the Croatian forces conducted a rapid offensive attack against the Krajina region of Croatia which had the purpose of removing ethnic Serbs, and make the region suitable for Croats instead. Both Gotovina and Markač were in a high military position that controlled the operation in Krajina.

Trial Chamber I found that both Gotovina and Markač had participated in a joint criminal enterprise (JCE, a mode of criminal responsibility in the jurisprudence of the Tribunal), which aimed to remove all Serbs from the Krajina region. Trial Chamber I found them guilty of crimes against humanity and war crimes; General Gotovina received a 24 year sentence, while Markač received 18 years imprisonment.

The Appeals Chamber considered that Trial Chamber I had erred in its analysis of the lawfulness of artillery attacks on four towns in Croatia. This error led the Appeals Chamber to reverse Trial Chamber I’s finding regarding the existence of a JCE to remove the Serb population from the Krajina region. This, in turn, resulted in the reversal of all convictions entered by Trial Chamber I under this mode of responsibility. Unable to enter convictions on any alternate modes of responsibility, the Appeals Chamber acquitted both Gotovina and Markač of all charges and ordered their immediate release.


Bemba Case: The Prosecutor v. Jean-Pierre Bemba Gombo

The Prosecutor v. Jean-Pierre Bemba Gombo, 21 Mar 2016, International Criminal Court (Trial Chamber III), The Netherlands

The Bemba case represents a significant milestone in international law, particularly concerning the doctrine of command responsibility. Mr. Jean-Pierre Bemba, a former Vice-President of the Democratic Republic of Congo, was charged with two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging). These charges were linked to the actions of the Movement for the Liberation of Congo (MLC), a militia group under his command, in the Central African Republic (CAR) between 2002 and 2003. 

Mr. Bemba's trial was groundbreaking in several aspects. It was one of the first major ICC trials focusing on sexual violence as an international crime, setting a precedent for how such crimes are prosecuted globally. The prosecution argued that Mr. Bemba had effective command and control over the MLC troops and failed to take necessary and reasonable measures to prevent or repress the commission of these crimes, nor did he submit the matter to the competent authorities for investigation and prosecution. 

The defense contended that Mr. Bemba had limited means to control his forces once they were deployed in CAR and that he was not directly responsible for the atrocities committed. They argued for his inability to exercise control over the troops due to communication challenges and logistical constraints. 

The judgment and the legal reasoning behind it delved into the nuances of command responsibility, assessing the extent of a military leader's liability for the actions of their subordinates. The trial also addressed complex issues of jurisdiction, admissibility, and the participation of victims in the proceedings, making it a landmark international criminal law case. 

This case was closely watched by international legal experts and human rights advocates, as it had significant implications for how commanders at all levels are held accountable for war crimes and crimes against humanity. The verdict was seen as a test of the ICC's ability to bring high-ranking officials to justice and a statement on the international community's commitment to addressing grave human rights violations. 


Hamdan: Hamdan v. Rumsfeld, Secretary of Defense et al.

Decision on Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit, 29 Jun 2006, Supreme Court, United States

Salim Ahmed Hamdan, a Yemeni citizen, was Osama bin Laden’s driver. Captured in Afghanistan in 2001 by members of the United States Armed Forces, he was transferred to the United States detention centre at Guantanamo Bay in 2002. By an order of the President of the United States, Hamdan was designated to stand trial before a United States Military Commission for charges of conspiracy to commit multiple offenses, including attacking civilians and civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent and terrorism. Hamdan’s counsel applied for a writ of habeas corpus alleging that the military commissions were unlawful and trial before them would violate Hamdan’s rights of access to a court.

In this decision, the Supreme Court reversed the decision of the Court of Appeal for the District of Columbia and held that Hamdan’s trial by military commission would be unlawful for a number of reasons: conspiracy, with which he is charged, is not a crime against the laws of war, the commissions do not conform to the requirements of the Uniform Code of Military Justice, nor with the rights guaranteed to Hamdan under the 1949 Geneva Conventions.


Karemera & Ngirumpatse: The Prosecutor v. Edouard Karemera & Matthieu Ngirumpatse

Judgement and Sentence, 2 Feb 2012, International Criminal Tribunal for Rwanda, Tanzania

The Arusha Accords brought an end to the civil war in Rwanda that had opposed the government to the Tutsi dominated Rwandan Patriotic Front. They introduced a transitional multi-party government with Habyarimana of the Mouvement Républicain National pour la Démocratie et le Développement (MRND) as its President. Following the death of the president on 6 April 1994, however, hostilities broke out once more.

The MRND, with the Accused Ngirumpatse as its President and his co-Accused Karemera as its Vice President proceeded to introduce and implement measures designed to target the Tutsi population. They actively supported the Interahamwe, a civilian militia that acted as the youth wing of the MRND, and which was resopnsible for the mass killing as well as the rape and sexual assault of countless Tutsi women. The Accused interfered with the territorial administration in Rwanda, warning local officials to support the Hutu policy and replacing any who opposed the killing of Tutsis. They travelled across governemnt controlled parts of Rwanda and espoused their anti-Tutsi policy with a view to inciting more killings.

By a judgment of 2 February 2012, Trial Chamber III of the International Criminal Tribunal for Rwanda found both Accused guilty of genocide, conspiracy to commit the same, direct and public incitement of the same, rape and extermination as crimes against humanity and the war crime of killing. They were both sentenced to life imprisonment. The judgment comes after 7 years of trial, the withdrawal of three judges, the death of one co-Accused and the controversial decision taking judicial notice that a genocide occurred in Rwanda in 1994, thereby alleviating the Prosecution of having to introduce evidence in order to prove the allegation beyond a reasoinable doubt.


Ríos Montt: Rigoberta Menchu et al. v Ríos Montt et al.

Summary of Situation and Cases, 20 May 2013, Constitutional Court of Guatemala, Tribunal Primero A, Guatemala

General Efraín Ríos Montt was a former head of state of Guatemala.

In 2007, Montt was elected for a seat in the Congress. In 2012, his term of office as a member of the Congress came to an end. As a result, his immunity (heads of states are given protection from being suit without their consent) was lifted. Complaints were brought against Ríos Montt for crimes that resulted in the deaths of 1,771 indigenous Ixil people during his 17-month rule.

On 10 May 2013, Ríos Montt was found guilty of crimes committed against the indigenous Mayan population between 1960 and 1996 and was sentenced to 50 years in prison. On 20 May 2013, Guatemala’s Constitutional Court annulled the decision and set back the trial to the proceedings of 19 April 2013.

Ríos Montt is the first former head of state to be convicted of genocide by a court in his own country.


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