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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.
Corrie v. Israel: Estate of the Late Rachel Corrie et al. v. The State of Israel - Ministry of Defense
Judgment, 28 Aug 2012, District Court of Haifa, Israel
On 16 March 2003 American Rachel Corrie, together with other International Solidarity Movement members, protested in the "Philadelphi Corridor" in the Rafiah area of the Gaza Strip against the demolition of Palestinian houses in the area. Two bulldozers and an Israel Defense Force (IDF) tank were present. When one of the bulldozers was driving towards a house in order to demolish it, Rachel stood in front of it to protect it and the inhabitants, meanwhile climbing the growing pile of dirt that was formed in front of the bulldozer. At a certain moment she slipped, fell and got stuck under the dirt and the bulldozer. After her fellow protesters made the bulldozer's operator aware of the situation, she was removed from underneath and taken to the hospital, where she died.
Rachel's parents filed a lawsuit against Israel and the IDF for killing or negligently causing the death of their daughter.
The Haifa District Court dismissed their claims, stating that the bulldozer's operator had never intended to kill Rachel and had also not been able to see her due to the "blind spot" in front of the bulldozer blade. Furthermore, it found, Rachel had taken the risk of entering the closed-off area and chose to climb the pile of dirt, thus putting herself in the dangerous situation. The Court concluded that she "was accidentally killed in the framework of a "war-related activity""; therefore, "the State bears no responsibility for the damages inflicted on the plaintiffs resulting from a war-related action".
Basebya: The Prosecutor v. Yvonne Basebya
Judgment, 1 Mar 2013, District Court of The Hague, The Netherlands
The current case, the first case for genocide charges before a Dutch court, took place against the Rwandan Yvonne Basebya. She comes from a wealthy family and married with Augustin Basebya, a high-ranking politician for the National Revolutionary Movement for Development (NRMD). Rwandan authorities alerted the Netherlands about Augustin being listed as wanted in Rwanda in 2007. Investigations followed, leading to Yvonne being suspected as well; ultimately, Yvonne was arrested in 2010 on suspicion of involvement in the Rwandan genocide.
The District Court of The Hague ruled on 1 March 2013 that Yvonne’s guilt on several of the (complicity in, and conspiracy to commit) genocide and war crimes charges could not be established. However, her repeated singing in public of the notorious anti-Tutsi song “Tubatsembatsembe” (meaning: “Let us eliminate them”) before the youth, unemployed and lower or uneducated and using her local notable upper-class position, combined with her repeatedly (even until the day of the judgment) expressed hatred against the Tutsis, did qualify as incitement to genocide. She was sentenced to six years and eight months in prison pursuant to the Dutch War Crimes Act: the maximum sentence at the time (which the Court regretted, noting that the 2003 International Crimes Act which replaced the War Crimes Act had changed this to 30 years).
A. v. The Minister of Defence
Interim judgment on the appeal against the Court of The Hague’s judgment of 1 November 2005, 25 Mar 2013, Administrative High Court Three-judge Section, The Netherlands
The appellant is a former soldier of Dutchbat III, a battalion which was part of the United Nations peacekeeping mission that was charged with the protection of civilians in the Bosnian Muslim enclave of Srebrenica. The appellant claimed that he suffered from post-traumatic stress disorder (PTSD) after being confronted with the atrocities against the Bosnian Muslim population of Srebrenica and experiencing the explosion of a nearby mortar shell. He brought a complaint against the Dutch Minister of Defence and requested compensation for not receiving the necessary care after the mission.
On 1 November 2005, the District Court of The Hague held that the Minister of Defence failed to provide the necessary aftercare for his soldiers after the fall of Srebrenica and upon their return to the Netherlands.
On 25 March 2013, the Administrative High Court of the Netherlands ruled that necessary care was provided during the mission in Srebrenica because the soldiers were trained and equipped. However, the Court affirmed that the Dutch Minister of Defence failed to provide necessary care for his soldiers after they returned home. As a result, the Court found that the Minister could be held liable for the PTSD of the soldier which he developed after the mission.
Prosecutor v. Mouhannad Droubi
Judgment, 26 Feb 2015, Södertörn District Court, Sweden
On 26 February 2015, Syrian citizen Mouhannad Droubi was sentenced by the Södertörn District Court in Sweden to five years in prison for crimes against international law (war crime) and gross assault. Droubi, who fought for the Free Syrian Army against the pro-government forces in the Syrian conflict, had taken refuge in Sweden and was granted residency in 2013. In July 2014, the Swedish police discovered a video of him, along with at least five other FSA fighters, violently assaulting a man who appeared to be a pro-regime fighter with a truncheon and a whip. The decision was overturned several times on appeal, leading to the final judgment of 5 August 2016 in which the accused was sentenced to 8 years’ imprisonment.
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