Mohamed Badar

'Just convict everyone!' Joint perpetration: From tadic to stakic and back again

On 22 March 2006, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) rendered its Judgment in the Stakic case. One of the issues which the Appeals Chamber addressed propio motu was the mode of liability attributed to the Appellant by the Trial Chamber. In examining the criminal responsibility of Dr. Milomir Stakic for the crimes alleged, the Trial Chamber applied a mode of liability which it termed ‘co-perpetratorship’ (committing ‘jointly with another person’), in lieu of ‘joint criminal enterprise’ (JCE). In so doing, the Stakic Trial Chamber avoided “the misleading impression that a new crime [membership in a criminal organization] not foreseen in the Statute of this Tribunal has been introduced through the backdoor.” However, “[t]he introduction of new modes of liability [co-perpetratorship] into the jurisprudence of the Tribunal”, the Appeals Chamber stressed, “may generate uncertainty, if not confusion, in the determination of the law by parties to cases before the Tribunal as well as in the application of the law by Trial Chambers.” Most notably, some ICTY judges have welcomed and fully approved the JCE doctrine “as an effective tool for overcoming the problems of ascribing individual criminal responsibility for international crimes.” Others hold the opinion that the concept of ‘joint criminal enterprise’, since its foundation and integration into the jurisprudence of the ICTY by the Tadic Appeals Chamber, “has caused confusion and a waste of time” and has been considered as a doctrine “of no benefit to the work of the Tribunal or the development of international criminal law.” This note will examine, therefore, both modes of liability (‘joint criminal enterprise’ and ‘co-perpetratorship’) in light of the Stakic Appeals and Trial Judgments.

Islamic Law ( Shari'a ) and the Jurisdiction of the International Criminal Court

Although the International Criminal Court (ICC) has been mostly hailed as a victory, Islamic states still regard its application of international criminal-law norms with scepticism. The Rome Statute instructs the Court to apply general principles of law derived from national laws of legal systems of the world including the national laws of states that would normally exercise jurisdiction over the crime but, so far, the Court has relied purely upon Western inspiration and may fail to acquire the legitimacy to establish a universal system. Among the legal systems that are unjustifiably neglected by the ICC is the Islamic legal tradition. This paper argues that the principles of Islamic law are, for the most part, consistent with internationally recognized norms and standards, particularly those enshrined in the Rome Statute, and are on an equal footing with the common and Continental legal systems that are currently employed by the Court in the search for general principles of law.

Mens rea – Mistake of Law & Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals

More than a decade has passed since the establishment of the two ad hoc Tribunals, however, the jurisprudence of both Tribunals evidence the inconsistency regarding the requisite mens rea standards for serious violations of international humanitarian law. Hence, a survey of the attitude taken towards the definition of the major facets of mens rea by the world major legal systems is of great significance with regard to the establishment of a unified concept for mens rea in international criminal law. Section I of this study examines some of the major judgments of the two ad hoc Tribunals where both Tribunals refers to national jurisdictions in order to clarify the mens rea required for the imposition of criminal responsibility for serious violations of international humanitarian law. Section II is a brief outline of the structure of the criminal offence in German criminal law. This is necessary since German criminal law does not follow the “offence analysis” scheme known in common law countries, but is based upon a three stage structure of the criminal offence. In Section III, the concept of intention (Vorsatz) in German criminal law is thoroughly discussed and analysed. This includes the discussion of dolus directus (first and second degree) as well as of dolus eventualis. Emphasis is put on the differentiation between dolus eventualis and negligence, since it reflects a highly debated issue in German criminal law. The concept of negligence will be outlined in Section IV. Given the fact that the German criminal law recognizes that mistake of law and mistake of fact (Tatbestandsirrtum, Verbotsirrtum) is not a separate doctrine, but part and parcel of the basic analysis of mens rea, these two basic types of mistake will be addressed in Section V. This includes the discussion of error in persona vel obiecto and aberratio ictus. Finally, the conclusion will be supported by some remarks and recommendations regarding the German law of intent and its influence on the development of international criminal law.

The Road to Genocide: The Propaganda Machine of the Self-declared Islamic State ( IS )

In the same manner as the Third Reich, Islamic State (IS) uses law, terror and propaganda as ‘techniques of governance’ that serve to advance their political aims: securing themselves in power, preparing and waging war, and fostering the idea of an Islamic state. IS have successfully used print and radio media systematically for the dissemination of lethal ideas and for the mobilization of the population on a grand scale in order to materialise these ideas. When such propaganda is laced with the dolus specialis of the crime of genocide, the severity of the mass action it brings about can be disastrous. This article analyses the hate propaganda used in the online publications of IS. Evidence will then bring to light the fact that their hate propaganda amounts to direct and public incitement of others to commit genocide and the propagandists could, thus, be prosecuted for this crime at national or international courts.

Asylum seekers and the European Union: past, present and future

The fall of Berlin Wall and the collapse of communism have dramatically altered the asylum landscape across the continent to the extent that some observers fear that the basic concept of asylum is in jeopardy. The changing polices of the Union from the Treaty of Maastricht to the Treaty of Amsterdam demonstrates how the interests of the member states have had contradictory demands for the restriction of the flows of refugees and asylum seekers into the European Union. This article examines in the effects of the flows of refugees and asylum seekers into the European Union, and the changing policies of the Union from the Treaty of Maastricht to the Treaty of Amsterdam. Finally, the article will discuss the main reasons of the asylum dilemma in the EU and the conclusion will be supported by some remarks and recommendations.

Ius in Bello under Islamic International Law

In 1966, Judge Jessup of the International Court of Justice pointed out that the appearance of an English translation of the teaching on the ‘Islamic law of nations’ of an eighth-century Islamic jurist (Shaybānī) is particularly timely and of so much interest because of the debate over the question whether the international law, of which Hugo Grotius is often called the father, is so completely Western-European in inspiration and outlook as to make it unsuitable for universal application in the context of a much wider and more varied international community of States. However, there has been little analysis of the role of Islam in shaping the modern European law of war and its progeny, international humanitarian law. This article argues that there is a room for the contribution of the Islamic civilisation within international humanitarian law and a conversation between different civilisations is needed in developing and applying international humanitarian law norms.

The International Criminal Court and the Nigerian Crisis: An Inquiry into the Boko Haram Ideology and Practices from an Islamic Law Perspective

Since its foundation in 1999 Boko Haram has carried out numerous acts of violence on the territory of Nigeria constituting gross violations of human rights. The Office of the Prosecutor (otp) of the International Criminal Court (icc) has been monitoring the violence between Boko Haram and Nigerian armed forces as part of a preliminary investigation. It has stated that the violence between Boko Haram and the armed forces has reached the level of a non-international armed conflict and that there is reason to believe that Boko Haram is responsible for war crimes and crimes against humanity. This article assesses certain types of behaviour of Boko Haram from an Islamic law perspective and examines whether Islamic law condemns or justifies such acts. Arguably, it would help the icc in asserting the legitimacy of its judgments, if it was able to prove that such judgments are compatible with the legal and belief system recognised by the actors at trial. In turn it would enable the Court to deal with at least some of the criticisms aimed at it for being an imperialistic institution.

Basic principles governing limitations on individual rights and freedoms in human rights instruments

Individual freedom has to be balanced with the freedom of other individuals and with the reasonable demands of the community. A significant element in the development of international instruments protecting human rights was the movement away from the use of single limitation clauses to the elaboration of specific limitation clauses in each article. The limitation provisions are found in several articles of the Covenants as well as in other regional human rights instruments. Any restriction on the rights or freedoms provided for in universal or regional human rights instruments must meet three requirements: first, it must be prescribed by law (the principle of legality); second, it must have justified one of the specified legitimate aims pursued in the particular article; and third, the limitation in all circumstances must be necessary in a democratic society. The purpose of this study is to examine the specific principles and notations related to the limitation provisions in international and regional human rights instruments.

Discussion Interrupted: The Destruction and Protection of Cultural Property under International Law and Islamic Law - the Case of Prosecutor v. Al Mahdi

Al Mahdi was the first case before the International Criminal Court (ICC) which focused on the destruction of cultural property, and indeed, the first case before an international criminal tribunal which had the destruction of cultural property as the sole charge against a jihadist. Despite the many legal sources which seek to regulate attacks on cultural property, the exact contours of the offence are unclear, especially with regard to the rationales for protection and prosecution. Some international instruments seek to prohibit attacks on cultural property because such property constitutes civilian property, while other instruments highlight the need to protect cultural property as a result of its importance to humanity. In addition, the case of Al Mahdi also opened up the issue of justifications for attacks on cultural property as Al Mahdi was a member of the Hisbah, or ‘morality brigade’ in Timbuktu, which had justified the attacks in accordance with Islamic law. In this context, the question arises if membership of the Hisbah could have been seen as a justification for the attacks on cultural property in Mali? This case note first addresses the international legal framework on the protection of cultural property in Section 2. Section 3 then assesses the concept of Hisbah and its operation, including the reasons why the Hisbah group in Mali destroyed cultural property. The next section considers the facts of the Al Mahdi case. Section 5 highlights the shortfalls in the Trial Chamber’s consideration of the rationales for the protection and destruction of cultural property, before the note concludes in Section 6.

Current developments at the international criminal tribunals (2008)

In the decision on the confi rmation of charges in the Katanga and Ngudjolo Chui case Pre-Trial Chamber I of the ICC elaborated on the defi nition and the requisite elements of ‘the war crime of pillaging under Article 8(2)(b)(xvi) of the ICC Statute, 2 which is criminalized under the Rome Statute whether it is committed in international or internal armed confl ict. According to the Elements of Crimes, the war crime of pillaging requires proof of the following three elements: ‘(i) the perpetrator appropriated certain property; (ii) the perpe trator intended to deprive the owner of the property and to appropriate it for private or personal use; and (iii) the appropriation was without the consent of the owner’.