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Post-apartheid South Africa continues to be faced with the difficult question on how to deal with past human rights violations. From 1999 until 2005, the South Africa Prosecution Authority attempted to have Wouter Basson convicted. Basson was head of the secret chemical and biological warfare project during the apartheid era. He was charged with a variety of crimes, including murder, fraud and dealing drugs. After several charges were dismissed and Basson was acquitted of all other charges, the prosecutor sought permission to appeal. The prosecutor argued that the trial judge should have stepped back from the case, as the prosecutor had accused him of being biased. Also, the prosecutor held that several charges should not have been dismissed and that the bail records should have been admitted during the trial proceedings. The Supreme Court of Appeal had denied this request, after which the prosecutor turned to the Constitutional Court.

In the preliminary ruling under review here, the Court refused to grant permission to appeal, although it did held that the issues raised by the prosecution were constitutional matters. Therefore, the Court ruled, these issues fell within the jurisdiction of the Constitutional Court. 

The Accused were brothers, Umbertos and Carlos Ena. Both were members of the Sakunar militia group, a pro-autonomy group that operated in East Timor in 1999 in conjunction with other militia groups and the Indonesian Armed Forces (TNI). They participated in a countrywide campaign of violence against the Timorese civilian population, targeting particularly those persons believed to be independence supporters. In September 1999, following the results of a referendum in which the people of East Timor had voted overwhelmingly in favour of independence, the Accused and other members of the militia group targeted the village of Nakome with machetes, spears and stones.

The Special Panel found that there was insufficient evidence to establish beyond a reasonable doubt that Carlos Ena was present or participated in the attack; he was accordingly acquitted. However, Umbertos Ena was convicted for his role in the deaths of two victims and for seriously injuring a third by stoning and stabbing. He was sentenced to 11 years’ imprisonment. 

The case against Milan Babić centered around the crimes that were committed by Serb forces in the Autonomous Region of Krajina (SAO Krajina) in Croatia, later known as the Republic of Serbian Krajina (RSK). Between August 1991 and February 1992, Serb forces attacked towns and villages in the Krajina region. After taking over control of the area, a campaign of crimes was commenced during which Croats and other non-Serbs were subjected to murder, imprisonment, deportation, forcible transfer and destruction of their homes, properties and cultural institutions. Babić held several high-level positions, such as President of the RSK. 

On 27 January 2004, Babić pleaded guilty to the crime against humanity of persecutions and, subsequently, on 28 January 2004, Trial Chamber I found him guilty. 

Trial Chamber I balanced the gravity of the crime Babić admitted to with the aggravating and mitigating circumstances in order to determine the adequate sentence. 

It found that the crimes were of extreme gravity and Babić's high level political position was an aggravating factor since he made resources available and prepared the Serb population to accept the crimes of persecution. Trial Chamber I also found several mitigating factors, including Babić's guilty plea, cooperation with the Prosecution, his remorse and family situation. Babić received a sentence of 13 years of imprisonment.

Marcelino Soares was a Village Level Commander of the Indonesian Army (TNI) during the violence that followed after East Timor’s 1999 referendum concerning its independence.  On 20 April 1999 soldiers under the command of Soares arrested three pro-independence supporters on his orders. The three prisoners, Luis Dias Soares, Rafael de Jesus and Felipe de Sousa were taken to an empty building on the orders of Marcelino Soares were they were detained, interrogated and physically abused by Soares himself and his subordinates. Luis Dias Soares died as a result of the wounds inflicted on him.

Soares was charged with murder, torture and persecution by illegal detention as crimes against humanity. The Court found that Soares was responsible for the murder of Dias Soares on the basis of command responsibility, as the death of Dias Soares resulted from his omission to control the soldiers under his command. For murder (or torture, or persecution) to be considered a crime against humanity, the act must be part of a widespread and systematic attack. The Court considered this was the case, and that Soares knew about this, as he attended TNI meetings.

The Trial Court convicted Soares, on the basis of both individual and command responsibility, for murder of one person and torture and persecution of three persons, as crimes against humanity, and sentenced him to 11 years imprisonment.

The Public Defender appealed against the conviction of the Dili District Court. The Court of Appeal examined whether an error of fact (leading to an error of law) had been committed by the Trial Court, when it acknowledged the systematic character of the attack against the civilian population contextual to the conduct of the accused, the illegality of detention of victims and the command responsibility of the accused.

The Court of Appeal found that the Trial Court had not erred in these matters and confirmed the judgment of the Trial Court.

A group of Dutch individuals and organisations filed a claim against the Netherlands asking for the arrest of George W. Bush. The proceedings were filed in advance of Bush’s visit to the Netherlands in his capacity as US President.

The American Service-Members’ Protection Act of 2002 (ASPA) allows the US to invade Dutch territory to liberate American or Israeli military personnel in the event that they are detained by the International Criminal Court (ICC). The petitioners said that such an incursion might result in many casualties and would violate international law. Therefore, they claimed that the ASPA constitutes a threat against the Netherlands, its citizens, and the ICC, and had to be assigned to George W. Bush.

On 5 April 2005, the District Court dismissed the case. The Court held that it cannot hear cases presenting political questions. In addition, the Court held that it could not prosecute George W. Bush because he enjoyed immunity as head of state.