William A. Schabas

Should active recruitment of health workers from sub-Saharan Africa be viewed as a crime?

Shortages of health-care staff are endemic in sub-Saharan Africa (table). Overall, there is one physician for every 8000 people in the region. In the worst affected countries, such as Malawi, the physician-to-population ratio is just 0·02 for every 1000 (one per 50 000). There are also huge disparities between rural and urban areas: rural parts of South Africa have 14 times fewer doctors than the national average. These numbers are very different to those in developed countries: the UK, for example, has over 100 times more physicians per population than Malawi. Furthermore, almost one in ten doctors working in the UK are from Africa. The insufficiency of health staff to provide even basic services is one of the most pressing impediments to health-care delivery in resource-poor settings. The consequences are clearly shown by the inverse relation that exists between health-care worker density and mortality.

The abolition of the death penalty in international law

This is the third edition of William A. Schabass highly praised study of the abolition of the death penalty in international law. Extensively revised to take account of developments in the field since publication of the second edition in 1997, the book details the progress of the international community away from the use of capital punishment, discussing in detail the abolition of the death penalty within the United Nations human rights system, international humanitarian law, European human rights law and Inter-American human rights law. New chapters in the third edition address capital punishment in African human rights law and in international criminal law. An extensive list of appendices contains many of the essential documents for the study of capital punishment in international law. The Abolition of the Death Penalty in International Law is introduced with a Foreword by Judge Gilbert Guillaume, President of the International Court of Justice.

Elements of Crimes

* Explanatory note: The structure of the elements of the crimes of genocide, crimes against humanity and war crimes follows the structure of the corresponding provisions of articles 6, 7 and 8 of the Rome Statute. Some paragraphs of those articles of the Rome Statute list multiple crimes. In those instances, the elements of crimes appear in separate paragraphs which correspond to each of those crimes to facilitate the identification of the respective elements.

Justice, democracy, and impunity in post-genocide Rwanda: Searching for solutions to impossible problems

Rwandas judicial system, however, is not capable of responding to the challenge. Given the number of judges, prosecutors, and courthouses, most suspects now in custody may die of old age before they ever get to court. Rwandas National Assembly adopted legislation in August 1996 to deal with genocide and crimes against humanity committed between October 1990 and December 1994. The country began to try genocide suspects in late December 1996. Some of the first trials were marred by the absence of defense counsel and impetuous refusals by trial judges to grant adjournments so the accused could find lawyers or otherwise prepare their cases. In cases where defense counsel was present, hearings were more acceptable from a human rights standpoint and provided Rwandas judicial system with a model on which to base future prosecutions. Some observers from the international media and the diplomatic corps were initially critical of the trials, but much of this dissatisfaction actually resulted from unfamiliarity with the inquisitorial system. Conditions of detention in Rwandan prisons and the International Criminal Tribunal established by the United Nations Security Council for Rwanda are discussed.

A Synergistic Relationship: The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone

Discusses the relationship between the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, focusing on the Special Courts ruling in the Prosecutor v Hinga Norman case. Reflects on the establishment of the Truth Commission and the subsequent establishment of the Special Court and examines the attempts made to regulate the relationship between them. Assesses the significance of the two institutions to post-conflict justice.

Darfur and the ‘Odious Scourge’: The Commission of Inquiry's Findings on Genocide

The report of the International Commission of Inquiry on Darfur, set up pursuant to a UN Security Council resolution, is an important contribution to the evolving law of genocide. The Commission concluded that genocide had not been committed, but that the case should be referred to the International Criminal Court for prosecution as crimes against humanity and war crimes. The Commission did not find significant evidence of genocidal intent. It looked essentially for a plan or policy of the Sudanese state and, in its absence, concluded that genocide was not being committed. The Commission endorsed the ‘stable and permanent groups’ approach taken by one trial chamber of the International Criminal Tribunal for Rwanda (ICTR). On this point, it exaggerated the acceptance of this interpretation, which has been ignored by other trial chambers of the international tribunals. However, the Commission found that the better approach to determination of the groups covered by the Convention is subjective, and that the targeted tribes in Darfur meet this criterion.

Enforcing international humanitarian law: Catching the accomplices

L iterally within days of the adoption of the Rome Statute of the International Criminal Court (ICC) at the end of the Rome Conference in July 19981 the Financial Times, the prestigious British business daily, published an article warning “commercial lawyers” that the treaty’s accomplice liability provision “could create international criminal liability for employees, officers and directors of corporations”. Writer Maurice Nyberg referred to condemnation of violations of human rights involving multinational corporations by non-governmental organizations like Human Rights Watch, adding that “[i]t takes little imagination to jump from complicity with human rights violations to complicity with crimes covered under the ICC Treaty”. Besides the more obvious offences relating to involvement in arms trading and financing of “security” for overseas investments, the article warned that “mistreatment of pregnant workers” and even “systematic pregnancy testing” by foreign subsidiaries might entail liability as a crime against humanity, namely that of persecution based upon gender.“As gender discrimination is wide-

The Jelisic Case and the Mens Rea of the Crime of Genocide

The December 1999 judgment of the ICTY in the Jelisic case is the first ruling on the merits from that court dealing with an indictment for genocide. The Trial Chamber concluded that the Prosecutor had failed to prove that genocide was committed and that consequently the accused could not be convicted as an accomplice to the crime. It went on to examine whether despite the absence of genocide on any widespread or systematic basis it was still possible for an individual, driven by genocidal intent, to commit one of the underlying crimes such as killing or causing serious bodily or mental harm. The Trial Chamber considered this a plausible hypothesis but ruled that this did not correspond to the facts of the case. Since the Jelisic ruling, the Preparatory Commission of the International Criminal Court has attempted to eliminate the lone genocidaire scenario in the Elements of Crimes. While the law remains unsettled, awaiting clarification from the Appeals Chamber, a wise prosecutorial policy would be to reserve international genocide prosecutions for serious cases involving organized and widespread crimes. Exaggerated attention to individual and isolated cases is a questionable use of valuable resources and risks diluting some of the terrible stigma now attached to the “crime of crimes.”

Whither genocide? The International Court of Justice finally pronounces

The long awaited judgment of the International Court of Justice in Bosnia and Herzegovina v Serbia 1 was greeted with considerable dismay in Sarajevo, and graciously welcomed in Belgrade (although no doubt champagne corks were popping in Serbia’s foreign ministry). They shouldn’t have been, because, as the Court noted, Serbia’s lawyers admitted to war crimes and crimes against humanity. But proceeding with the case now looks like a terrible miscalculation on the Bosnian side. Its lawyers were seduced by the idea of an expansive and liberal conception of genocide by which it would encompass a range of atrocities colloquially described by such terms as “ethnic cleansing.” They were no doubt encouraged by politicians, journalists and academics, who have all been guilty of imprecise use of the term. Actually, the Court’s final judgment, issued on February 26, 2007, was entirely predictable. It was remarkably consistent with the decisions, and the practice, of the institutions of the International Criminal Tribunal for the former Yugoslavia, upon which the Court relied heavily. Careful students of the Yugoslavia Tribunal would have known that there had been no successful prosecutions for genocide, with the notable exception of two cases relating to the July 1995 massacre in Srebrenica. But even in those cases, many judges seemed uncomfortable with the result, and compromised by calling the accused “accomplices” rather than perpetrators. There had been several acquittals on counts of genocide, although the accused were invariably convicted of crimes against humanity instead. Moreover, the Office of the Prosecutor had often indicated its ambivalence on the subject. Often, the Prosecutor doesn’t even bother to appeal a genocide acquittal. It declined charging Milosevic with genocide with respect to Kosovo. Even more striking was the decision to withdraw genocide charges against Biljana Plavšić, who had been one of the Bosnian Serb leaders at the height of the conflict. If she hadn’t been responsible for genocide, then who had? When all of this was added up, it should have been clear to the lawyers for Bosnia that their case sat on a fragile footing. There must have been a forlorn and ultimately misguided hope that the International Court of Justice would “correct” its neighbour, the International Criminal Tribunal for the former Yugoslavia. But it did nothing of Journal of Genocide Research (2007), 9(2), June, 183–192

General principles of criminal law in the International Criminal Court Statute (Part III)

General principles which draw on established norms of criminal law and cover applicable law, principle of legality and non retroactivity, individual criminal responsibility, responsibility of minors, mens rea and defences.