Republic of the Philippines

Congress of the Philippines

Metro Manila

Fourteenth Congress
Third Regular Session

Begun and held in Metro Manila, on Monday, the twenty-seventh day of July, two thousand nine.

REPUBLIC ACT NO. 9851

AN ACT DEFINING AND PENALIZING CRIMES AGAINST INTERNATIONAL HUMANITARIAN

LAW, GENOCIDE AND OTHER CRIMES AGAINST HUMANITY, ORGANIZING JURISDICTION,
DESIGNATING SPECIAL COURTS, AND FOR RELATED PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:

CHAPTER I
INTRODUCTORY PROVISIONS

Section 1. Short Title. - This Act shall be known as the "Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against Humanity".

Section 2. Declaration of Principles and State Policies. -

(a) The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to a policy
of peace, equality, justice, freedom, cooperation and amity with all nations.

(b) The state values the dignity of every human person and guarantees full respect for
human rights, including the rights of indigenous cultural communities and other vulnerable
groups, such as women and children;

(c) It shall be the responsibility of the State and all other sectors concerned to resolved
armed conflict in order to promote the goal of "Children as Zones of Peace";

(d) The state adopts the generally accepted principles of international law, including the
Hague Conventions of 1907, the Geneva Conventions on the protection of victims of war and
international humanitarian law, as part of the law our nation;

(e) The most serious crimes of concern to the international community as a whole must not
go unpunished and their effective prosecution must be ensured by taking measures at the
national level, in order to put an end to impunity for the perpetrators of these crimes and thus
contribute to the prevention of such crimes, it being the duty of every State to exercise its
criminal jurisdiction over those responsible for international crimes;
 (f) The State shall guarantee persons suspected or accused of having committed grave
crimes under international law all rights necessary to ensure that their trial will be fair and
prompt in strict accordance with national and international law and standards for fair trial, It
shall also protect victims, witnesses and their families, and provide appropriate redress to
victims and their families, It shall ensure that the legal systems in place provide accessible
and gender-sensitive avenues of redress for victims of armed conflict, and

(g)The State recognizes that the application of the provisions of this Act shall not affect the
legal status of the parties to a conflict, nor give an implied recognition of the status of
belligerency

CHAPTER II
DEFINITION OF TERMS

Section 3. For purposes of this Act, the term:

(a) "Apartheid' means inhumane acts committed in the context of an institutionalized regime
of systematic oppression and domination by one racial group or groups and committed with
the intention of maintaining that regime

(b) "Arbitrary deportation or forcible transfer of population" means forced displacement of the
persons concerned by expultion by expulsion or other coercive acts from the area in which
they are lawfully present, without grounds permitted under domestic or international law.

(c) "Armed conflict" means any use of force or armed violence between States or a
protracted armed violence between governmental authorities and organized armed groups or
between such groups within that State: Provided, That such force or armed violence gives
rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949,
including their common Article 3, apply. Armed conflict may be international, that is, between
two (2) or more States, including belligerent occupation; or non-international, that is,
between governmental authorities and organized armed groups or between such groups
within a state. It does not cover internal disturbances or tensions such as riots, isolated and
sporadic acts of violence or other acts of a similar nature.

(d) "Armed forces" means all organized armed forces, groups and units that belong to a party
to an armed conflict which are under a command responsible to that party for the conduct of
its subordinates. Such armed forces shall be subject to an internal disciplinary system which
enforces compliance with International Humanitarian Law

(e) "Attack directed against any civilian population" means a course of conduct involving the
multiple commission of acts referred to in Section 6 of this Act against any civilian population,
pursuant to or in furtherance of a State or organizational policy to commit such attack.

(f) "Effective command and control" or " effective authority and control" means having the
material ability to prevent and punish the commission of offenses by subordinates.

(g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or

abduction of persons by, or with the authorization support or acquiescence of, a State or a
political organization followed by a refusal to acknowledge that deprivation of freedom or to
give information on the fate or whereabouts of those persons, with the intention of removing
from the protection of the law for a prolonged period of time
(h) "Enslavement" means the exercise of any or all of the powers attaching to the right of
ownership over a person and includes the exercise of such power in the course of trafficking
in persons, in particular women and children.

(i) "Extermination" means the international infliction of conditions of life, inter alia, the
deprivation of access to food and medicine, calculated to bring about the destruction of a
part of a population.

(j) " Forced pregnancy" means the unlawful confinement of a women to be forcibly made
pregnant, with the intent of affecting the ethnic composition of any population carrying out
other grave violations of international law.

(k) "Hors de Combat" means a person who:

(1) is in the power of an adverse party;

(2) has clearly expressed an intention to surrender; or

(3) has been rendered unconscious or otherwise incapacitated by wounds or

sickness and therefore is incapable of defending himself: Provided, that in any of
these cases, the person form any hostile act and does not attempt to escape.

(l) "Military necessity" means the necessity of employing measures which are indispensable
to achieve a legitimate aim of the conflict and are not otherwise prohibited by International
Humanitarian Law

(m) "Non-defended locality" means a locality that fulfills the following conditions:

(1) all combatants, as well as mobile weapons and mobile military equipment, must
have been evacuated;

(2) no hostile use of fixed military installations or establishments must have been
made;

(3) no acts of hostility must have been committed by the authorities or by the
population; and

(4) no activities in support of military operations, must have been undertaken.

(n) "No quarter will be given' means refusing to spare the life of anybody, even of persons
manifestly unable to defend themselves or who clearly express their intention to surrender.

(o) "Perfidy" means acts which invite the confidence of an adversary to lead him/her to
believe he/she is entitled to, or is obliged to accord, protection under the rules of
International Humanitarian Law, with the intent to betray that confidence, including but not
limited to:

(1) feigning an intent to negotiate under a flag of truce;

(2) feigning surrender;

 (3) feigning incapacitation by wounds or sickness;

(4) feigning civilian or noncombatant status; and

(5) feigning protective status by use of signs, emblems or uniforms of the United
Nations or of a neutral or other State not party to the conflict.

(p) "Persecution" means the international and severe deprivation of fundamental rights
contrary to international law by reason of identity of the group or collectivity.

(q) "Protect person" in an armed conflict means:

(1) a person wounded, sick or shipwrecked, whether civilian or military;

(2) a prisoner of war or any person deprived of liberty for reasons related to an
armed conflict;

(3) a civilian or any person not taking a direct part or having ceased to take part in
the hostilities in the power of the adverse party;

(4) a person who, before the beginning of hostilities, was considered a stateless
person or refugee under the relevant international instruments accepted by the
parties to the conflict concerned or under the national legislation of the state of
refuge or state of residence;

(5) a member of the medical personnel assigned exclusively to medical purposes or

to the administration of medical units or to the operation of or administration of
medical transports; or

(6) a member of the religious personnel who is exclusively engaged in the work of
their ministry and attached to the armed forces of a party to the conflict, its medical
units or medical transports, or non-denominational, noncombatant military personnel
carrying out functions similar to religious personnel.

(r) " Superior" means:

(1) a military commander or a person effectively acting as a military commander; or

(2) any other superior, in as much as the crimes arose from activities within the
effective authority and control of that superior.

(s) "Torture" means the intentional infliction of severe pain or suffering, whether physical,
mental, or psychological, upon a person in the custody or under the control of the accused;
except that torture shall not include pain or suffering arising only from, inherent in or
incidental to, lawful sanctions.

(t) "Works and installations containing dangerous forces" means works and installations the
attack of which may cause the release of dangerous forces and consequent severe losses
among the civilian population, namely: dams, dikes, and nuclear, electrical generation
stations.
 CHAPTER III
CRIMES AGAINST INTERNATIONAL HUMANITARIAN LAW,
GENOCIDE AND OTHER CRIMES AGAINST HUMANITY

Section 4. War Crimes. - For the purpose of this Act, "war crimes" or "crimes against Interntional
Human Humanitarian Law" means:

(a) In case of an international armed conflict , grave breaches of the Geneva Conventions of
12 August 1949, namely, any of the following acts against persons or property protected
under provisions of the relevant Geneva Convention:

(1) Willful killing;

(2) Torture or inhuman treatment, including biological experiments;

(3) Willfully causing great suffering, or serious injury to body or health;

(4) Extensive destruction and appropriation of property not justified by military

necessity and carried out unlawfully and wantonly;

(5) Willfully depriving a prisoner of war or other protected person of the rights of fair
and regular trial;

(6) Arbitrary deportation or forcible transfer of population or unlawful confinement;

(7) Taking of hostages;

(8) Compelling a prisoner a prisoner of war or other protected person to serve in the
forces of a hostile power; and

(9) Unjustifiable delay in the repatriation of prisoners of war or other protected

persons.

(b) In case of a non-international armed conflict, serious violations of common Article 3 to the
four (4) Geneva Conventions of 12 August 1949, namely , any of the following acts
committed against persons taking no active part in the hostilities, including member of the
armed forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention or any other cause;

(1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment
and torture;

(2) Committing outrages upon personal dignity, in particular, humiliating and

degrading treatment;

(3) Taking of hostages; and

(4) The passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all judicial
guarantees which are generally recognized as indispensable.
(c) Other serious violations of the laws and customs applicable in armed conflict, within the
established framework of international law, namely:

(1) Internationally directing attacks against the civilian population as such or against
individual civilians not taking direct part in hostilities;

(2) Intentionally directing attacks against civilian objects, that is, object which are not
military objectives;

(3) Intentionally directing attacks against buildings, material, medical units and
transport, and personnel using the distinctive emblems of the Geneva Conventions
or Additional Protocol III in conformity with intentional law;

(4) Intentionally directing attacks against personnel, installations, material, units or

vehicles involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as ling as they are entitled to the
protection given to civilians or civilian objects under the international law of armed
conflict;

(5) Launching an attack in the knowledge that such attack will cause incidental loss
of life or injury to civilians or damage to civilian objects or widespread, long-term and
severe damage to the natural environment which would be excessive in relation to
the concrete and direct military advantage anticipated;

(6) Launching an attack against works or installations containing dangerous forces in

the knowledge that such attack will cause excessive loss of life, injury to civilians or
damage to civilian objects, and causing death or serious injury to body or health .

(7) Attacking or bombarding, by whatever means, towns, villages, dwellings or

buildings which are undefended and which are not military objectives, or making non-
defended localities or demilitarized zones the object of attack;

(8) Killing or wounding a person in the knowledge that he/she is hors de

combat, including a combatant who, having laid down his/her arms or no longer
having means of defense, has surrendered at discretion;

(9) Making improper use of a flag of truce, of the flag or the military insignia and
uniform of the enemy or of the United Nations, as well as of the distinctive emblems
of the Geneva Conventions or other protective signs under International
Humanitarian Law, resulting in death, serious personal injury or capture;

(10) Intentionally directing attacks against buildings dedicated to religion, education,

art, science or charitable purposes, historic monuments, hospitals and places where
the sick and wounded are collected, provided they are not military objectives. In case
of doubt whether such building or place has been used to make an effective
contribution to military action, it shall be presumed not to be so used;

(11) Subjecting persons who are in the power of an adverse party to physical
mutilation or to medical or scientific experiments of any kind, or to removal of tissue
or organs for transplantation, which are neither justified by the medical, dental or
hospital treatment of the person concerned nor carried out in his/her interest, and
which cause death to or seriously endanger the health of such person or persons;

(12) Killing, wounding or capturing an adversary by resort to perfidy;

(13) Declaring that no quarter will be given;

(14) Destroying or seizing the enemy's property unless such destruction or seizure is
imperatively demanded by the necessities of war;

(15) Pillaging a town or place, even when taken by assault;

(16) Ordering the displacements of the civilian population for reasons related to the
conflict, unless the security of the civilians involved or imperative military reasons so
demand;

(17) Transferring, directly or indirectly, by the occupying power of parts of its own
civilian population into the territory it occupies, or the deportation or transfer of all or
parts of the population of the occupied territory within or outside this territory;

(18) Commiting outrages upon personal dignity, in particular, humiliating and

degrading treatments;

(19) Commiting rape, sexual slavery, enforced prostitution, forced pregnancy,

enforced sterilization, or any other form of sexual violence also constituting a grave
breach of the Geneva Conventions or a serious violation of common Article 3 to the
Geneva Convensions;

(20) Utilizing the presence of a civilian or other protected person to render certain
points, areas or military forces immune from military operations;

(21) Intentionally using starvation of civilians as a method of warfare by depriving

them of objects indespensable to their survival, including willfully impeding relief
supplies as provided for under the Geneva Conventions and their Additional
Protocols;

(22) In an international armed conflict, compelling the nationals of the hostile party to
take part in the operations of war directed against their own country, even if they
were in the belligerent's service before the commencement of the war;

(23) In an international armed conflict, declaring abolished, suspended or

inadmissible in a court of law the rights and actions of the nationals of the hostile
party;

(24) Commiting any of the following acts:

(i) Conscripting, enlisting or recruiting children under the age of fifteen (15)
years into the national armed forces;

(ii) Conscripting, enlisting or recruiting children under the age of eighteen (18)
years into an armed force or group other than the national armed forces; and
 (iii) Using children under the age of eighteen (18) years to participate actively
in hostilities; and

(25) Employing means of warfare which are prohibited under international law, such
as:

(i) Poison or poisoned weapons;

(ii) Asphyxiating, poisonous or other gases, and all analogous liquids,

materials or devices;

(iii) Bullets which expand or flatten easily in the human body, such as bullets
with hard envelopes which do not entirely cover the core or are pierced with
incisions; and

(iv) Weapons, projectiles and material and methods of warfare which are of
the nature to cause superfluous injury or unecessary suffering or which are
inherently indiscriminate in violation of the international law of armed conflict.

Any person found guilty of commiting any of the acts specified herein shall suffer the penalty
provided under Section 7 of this Act.

Section 5. Genocide - (a) For the purpose of this Act, "genocide" means any of the following acts
with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social or any other
similar stable and permanent group as such:

(1) Killing members of the group;

(2) Causing serious bodily or mental harm to members of the group;

(3) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;

(4) Imposing measures intended to prevent births within the group; and

(5) Forcibly transferring children of the group to another group.

(b) It shall be unlawful for any person to directly and publicly incite others to commit
genocide.

Any person found guilty of committing any of the acts specified in paragraphs (a) and (b) of this
section shall suffer the penalty provided under Section 7 of this Act.

Section 6. Other Crimes Against Humanity. - For the purpose of this act, "other crimes against
humanity" means any of the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack:

(a) Willful killing;

(b) Extermination;
 (c) Enslavement;

(d) Arbitrary deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental

rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally
recognized as impermissible under international law, in connection with any act referred to in
this paragraph or any crime defined in this Act;

(i) Enforced or involuntary disappearance of persons;

(j) Apartheid; and

(k) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.

Any person found guilty of committing any of the acts specified herein shall suffer the penalty
provided under Section 7 of this Act.

CHAPTER IV
PENAL PROVISIONS

Section 7. Penalties. - Any person found guilty of committing any of the acts provided under
Sections 4, 5 and 6 of this Act shall suffer the penalty of reclusion temporal in its medium to
maximum period and a fine ranging from One hundred thousand pesos (Php 100,000.00) to Five
hundred thousand pesos (Php 500,000.00).

When justified by the extreme gravity of the crime, especially where the commision of any of the
crimes specified herein results in death or serious physical injury, or constitutes rape, and
considering the individual circumstances of the accused, the penalty of reclusion perpetua and a fine
ranging from Five hundred thousand pesos (Php 500,000.00) to One million pesos (Php
1,000,000.00) shall be imposed.

Any person found guilty of inciting others to commit genocide referred to in Section 5(b) of this Act
shall suffer the penalty of prision mayor in its minimum period and a fine ranging from Ten thousand
pesos (Php 10,000.00) to Twenty thousand pesos (Php 20,000.00).

In addition, the court shall order the forfeiture of proceeds, property and assets derived, directly or
indirectly, from that crime, without prejudice to the rights of bona fide third (3rd) parties. The court
shall also impose the corresponding accessory penalties under the Revised Penal Code, especially
where the offender is a public officer.
 CHAPTER V
SOME PRINCIPLES OF CRIMINAL LIABILITY

Section 8. Individual Criminal Responsibilities. - (a) In addition to existing provisions in Philippine

law on principles of criminal responsibility, a person shall be criminally liable as principal for a crime
defined and penalized in this Act if he/she:

(1) Commits such a crime, whether as an individual, jointly with another or through
another person, regardless of whether that other person is criminally responsible;

(2) Orders, solicits or induces the commission of such a crime which in fact occurs or
is attempted;

(3) In any other way contributes to the commission or attempted commission of such
a crime by a group of person acting with a common purpose. Such contribution shall
be intentional and shall either:

(i) be made with the aim of furthering the criminal activity or criminal purpose
of the group, where such activity or purpose involves the commission of a
crime defined in this Act; or

(ii) be made in the knowledge of the intention of the group to commit the
crime.

(b) A person shall be criminally liable as accomplice for facilitating the commission of a crime
defined and penalized in this Act if he/she aids, abets or otherwise assists in its commission
or attempted commission, including providing the means for its commission.

(c) A person shall be criminally liable for a crime defined and penalized in this Act if he/she
attempts to commit such a crime by taking action that commences its execution by means of
a substantial step, but the crime does not occur because of circumstances independent of
the person's intention. However, a person who abandons the effort to commit the crime or
otherwise prevents the completion of the crime shall not be liable for punishment under this
Act for the attempt to commit the same if he/she completely and voluntarily gave up the
criminal purpose.

Section 9. Irrelevance of Official Capacity. - This Act shall apply equally to all persons without any
distinction based on official capacity. In particular, official capacity as a head of state or government,
a member of a government or parliament, an elected representative or a government official shall in
no case exempt a person from criminal responsibility under this Act, nor shall it, in and of itself,
constitute a ground for reduction of sentence. However:

(a) Immunities or special procedural rules that may be attached to the official capacity of a
person under Philippine law other than the established constitutional immunity from suit of
the Philippine President during his/her tenure, shall not bar the court from exercising
jurisdiction over such a person; and

(b) Immunities that may be attached to the official capacity of a person under international
law may limit the application of this Act, nut only within the bounds established under
international law.
Section 10. Responsibility of Superiors. - In addition to other grounds of criminal responsibility for
crimes defined and penalized under this Act, a superior shall be criminally responsible as a principal
for such crimes committed by subordinates under his/her effective command and control, or effective
authority and control as the case may be, as a result of his/her failure to properly exercise control
over such subordinates, where:

(a) That superior either knew or, owing to the circumstances at the time, should have known
that the subordinates were committing or about to commit such crimes;

(b) That superior failed to take all necessary and reasonable measures within his/her power
to prevent or repress their commission or to submit the matter to the competent authorities
for investigation and prosecution.

Section 11. Non-prescription. - The crimes defined and penalized under this Act, their prosecution,
and the execution of sentences imposed on their account, shall not be subject to any prescription.

Section 12. Orders from a Superior. - The fact that a crime defined and penalized under this Act has
been committed by a person pursuant to an order of a government or a superior, whether military or
civilian, shall not relieve that person of criminal responsibility unless all of the following elements
occur:

(a) The person was under a legal obligation to obey orders of the government or the superior
in question;

(b) The person did not know that the order was unlawful; and

(c) The order was not manifestly unlawful.

For the purposes of this section, orders to commit genocide or other crimes against humanity are
manifestly unlawful.

CHAPTER VI
Protection of Victims and Witnesses

Section 13. Protection of Victims and Witnesses. - In addition to existing provisions in Philippine law
for the protection of victims and witnesses, the following measures shall be undertaken:

(a) The Philippine court shall take appropriate measures to protect the safety, physical and
physiological well-being, dignity and privacy of victims and witnesses. In so doing, the court
shall have regard of all relevant factors, including age, gender and health, and the nature of
the crime, in particular, but not limited to, where the crime involves sexual or gender violence
or violence against children. The prosecutor shall take such measures particularly during the
investigation and prosecution of such crimes. These measures shall not be prejudicial to or
inconsistent with the rights of the accused and to a fair and impartial trial;

(b) As an exception to the general principle of public hearings, the court may, to protect the
victims and witnesses or an accused, conduct any part of the proceedings in camera or allow
the presentation of evidence by electronic or other special means. In particular, such
measures shall be implemented in the case of the victim of sexual violence or a child who is
a victim or is a witness, unless otherwise ordered by the court, having regard to all the
circumstances, particularly the views of the victim or witness;
 (c) Where the personal interests of the victims are affected, the court shall permit their views
and concerns to be presented and considered at stages of the proceedings determined to be
appropriate by the court in manner which is not prejudicial to or inconsistent with the rights of
the accused and a fair and impartial trial. Such views and concerns may be presented by the
legal representatives of the victims where the court considers it appropriate in accordance
with the established rules of procedure and evidence; and

(d) Where the disclosure of evidence or information pursuant to this Act may lead to the
grave endangerment of the security of a witness for his/her family, the prosecution may, for
the purposes of any proceedings conducted prior to the commencement of the trial, withhold
such evidence or information and instead submit a summary thereof. Such measures shall
be exercised in a manner which is not prejudicial to or inconsistent with the rights of the
accused and to a fair and impartial trial.

Section 14. Reparations to Victims. - In addition to existing provisions in Philippine law and
procedural rules for reparations to victims, the following measures shall be undertaken:

(a) The court shall follow the principles relating to the reparations to, or in respect of,
victims,including restitution, compensation and rehabilitation. On this basis, in its decision,
the court may, wither upon request or on its own motion in exceptional circumstances,
determine the scope and extent of any damage, loss and injury to, or in respect of, victims
and state the principles on which it is acting;1avvphi1

(b) The court may make an order directly against a convicted person specifying appropriate
reparations to, or in respect of, victims, including restitution, compensation and rehabilitation;
and

(c) Before making an order under this section, the court may invite and shall take account of
representations from or on behalf of the convicted person, victims or other interested
persons.

Nothing in this section shall be interpreted as prejudicing the rights of victims under national or
international law.

CHAPTER VII
Applicability of International Law and Other Laws

Section 15. Applicability of International Law.- In the application and interpretation of this Act,
Philippine courts shall be guided by the following sources:

(a) The 1948 Genocide Convention;

(b) The 1949 Genava Conventions I-IV, their 1977 Additional Protocols I and II and their
2005 Additional Protocol III;

(c) The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed
Conflict, its First Protocol and its 1999 Second Protocol;

(d) The 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on the
Involvement of Children in Armed Conflict;
 (e) The rules and principles of customary international law;

(f) The judicial decisions of international courts and tribunals;

(g) Relevant and applicable international human rights instruments;

(h) Other relevant international treaties and conventions ratified or acceded to by the
Republic of the Philippines; and

(i) Teachings of the most highly qualified publicists and authoritative commentaries on the
foregoing sources as subsidiary means for the determination of rules of international law.

Section 16. Suppletory Application of the Revised Penal Code and Other General or Special Laws. -
The provisions of the Revised Penal Code and other general or special laws shall have a suppletory
application to the provisions of this Act.

CHAPTER VII
JURISDICTION

Section 17. Jurisdiction.- The State shall exercise jurisdiction over persons, whether military or
civilian, suspected or accused of a crime defined and penalized in this Act, regardless of where the
crime is committed, provided, any one of the following conditions is met:

(a) The accused is a Filipino citizen;

(b) The accused, regardless of citizenship or residence, is present in the Philippines; or

(c) The accused has committed the said crime against a Filipino citizen.

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities
may surrender or extradite suspected or accused persons in the Philippines to the appropriate
international court, if any, or to another State pursuant to the applicable extradition laws and treaties.

No criminal proceedings shall be initiated against foreign nationals suspected or accused of having
committed the crimes defined and penalized in this Act if they have been tried by a competent court
outside the Philippines in respect of the same offense and acquitted, or having been convicted,
already served their sentence.

Section 18. Philippine Court, Prosecutors and Investigators. - The Regional Trial Court of the
Philippines shall have original and exclusive jurisdiction over the crimes punishable under this Act.
Their judgments may be appealed or elevated to the Court of Appeals and to the Supreme Court as
provided by law.

The Supreme Court shall designate special courts to try cases involving crimes punishable under
this Act. For these cases, the Commission on Human Rights, the Department of Justice, the
Philippine National Police or other concerned law enforcement agencies shall designate prosecutors
or investigators as the case may be.
The State shall ensure that judges, prosecutors and investigators, especially those designated for
purposes of this Act, receive effective training in human rights, International Humanitarian Law and
International Criminal Law.

CHAPTER IX
FINAL PROVISIONS

Section 19. Separability Clause. - If, for any reason or reasons, any part or provision of this Statute
shall be held to be unconstitutional or invalid, other parts or provisions hereof which are not affected
thereby shall continue to be in full force and effect.

Section 20. Repealing Clause. - All laws, presidential decrees and issuances, executive orders,
rules and regulations or parts thereof inconsistent with the provisions of this Statute are hereby
repealed or modified accordingly.

Section 21. Effectivity. - This Act shall take effect fifteen (15) days after its complete publication in
the Official Gazette or in two (2) newspapers general circulation.

Approved,

The Tribunal irreversibly changed the landscape of international

humanitarian law.
The International Criminal Tribunal for the former Yugoslavia (ICTY) is a United
Nations court of law dealing with war crimes that took place during the conflicts
in the Balkans in the 1990’s. Since its establishment in 1993, it has irreversibly
changed the landscape of international humanitarian law and provided victims
an opportunity to voice the horrors they witnessed and experienced.

In its precedent-setting decisions on genocide, war crimes and crimes against

humanity, the Tribunal has shown that an individual’s senior position can no
longer protect them from prosecution.

It has now shown that those suspected of bearing the greatest responsibility for
atrocities committed can be called to account, as well as that guilt should be
individualised, protecting entire communities from being labelled as “collectively
responsible”.

The Tribunal has laid the foundations for what is now the accepted norm for
conflict resolution and post-conflict development across the globe, specifically
that leaders suspected of mass crimes will face justice. The Tribunal has proved
that efficient and transparent international justice is possible.

The Tribunal has contributed to an indisputable historical record, combating

denial and helping communities come to terms with their recent history. Crimes
across the region can no longer be denied. For example, it has been proven
beyond reasonable doubt that the mass murder at Srebrenica was genocide.

Judges have also ruled that rape was used by members of the Bosnian Serb
armed forces as an instrument of terror, and the judges in the Kvočka et al. trial
established that a “hellish orgy of persecution” occurred in the Omarska,
Keraterm and Trnopolje camps of northwestern Bosnia.

Exhibit showing a murder perpetrated by Goran Jelisić

While the most significant number of cases heard at the Tribunal have dealt with
alleged crimes committed by Serbs and Bosnian Serbs, the Tribunal has
investigated and brought charges against persons from every ethnic background.
Convictions have been secured against Croats, as well as both Bosnian Muslims
and Kosovo Albanians for crimes committed against Serbs and others.

While its judgements demonstrate that all parties in the conflicts committed
crimes, the Tribunal regards its fairness and impartiality to be of paramount
importance. It takes no side in the conflict and does not attempt to create any
artificial balance between different groups. Evidence is the basis upon which the
Prosecution presents a case. The Judges ensure a fair and open trial, assessing
the evidence to determine the guilt or innocence of the accused.

Established as an ad hoc court, the Security Council endorsed the

Tribunal’s completion strategy for a staggered and ordered closure.

Exhibit showing inmates of a Serb-run detention camp

Since 2003 the court has worked closely with local judiciaries and courts in the
former Yugoslavia, working in partnership as part of a continuing effort to see
justice served.

Undoubtedly, the Tribunal’s work has had a major impact on the states of the
former Yugoslavia. Simply by removing some of the most senior and notorious
criminals and holding them accountable the Tribunal has been able to lift the
taint of violence, contribute to ending impunity and help pave the way for
reconciliation.

Establishment
In May 1993, the Tribunal was established by the United Nations in response to
mass atrocities then taking place in Croatia and Bosnia and Herzegovina.
Reports depicting horrendous crimes, in which thousands of civilians were being
killed and wounded, tortured and sexually abused in detention camps and
hundreds of thousands expelled from their homes, caused outrage across the
world and spurred the UN Security Council to act.

The ICTY was the first war crimes court created by the UN and the first
international war crimes tribunal since the Nuremberg and Tokyo tribunals. It
was established by the Security Council in accordance with Chapter VII of the
UN Charter.

Judges and the Registrar in court

The key objective of the ICTY is to try those individuals most responsible for
appalling acts such as murder, torture, rape, enslavement, destruction of
property and other crimes listed in the Tribunal's Statute. By bringing
perpetrators to trial, the ICTY aims to deter future crimes and render justice to
thousands of victims and their families, thus contributing to a lasting peace in
the former Yugoslavia.

Situated in The Hague, the Netherlands, the ICTY has charged over 160 persons.
Those indicted by the ICTY include heads of state, prime ministers, army chiefs-
of-staff, interior ministers and many other high- and mid-level political, military
and police leaders from various parties to the Yugoslav conflicts. Its indictments
address crimes committed from 1991 to 2001 against members of various ethnic
groups in Croatia, Bosnia and Herzegovina, Serbia, Kosovo and the Former
Yugoslav Republic of Macedonia.

Those interested in the Tribunal's proceedings can visit the ICTY and watch
trials first-hand. Trials can also be followed through the internet broadcast on
this website.

The ICTY is made up of three main branches: the Chambers, the Registry, and
the Office of the Prosecutor.

International Criminal Courts for the Former Yugoslavia, Rwanda and

Sierra Leone: A Guide to Online and Print Resources
by Amy Burchfield

Amy Burchfield is an International and Foreign Law Reference Librarian at the John Wolff International
& Comparative Law Library at the Georgetown University Law Center. She graduated from The Ohio State
University Moritz College of Law and from Kent State University with a MLIS and MA in German
translation.

Published October 2005

Read the Update!
Table of Contents
Introduction
Chart Comparing the Three Courts
International Criminal Tribunal for the former Yugoslavia (ICTY)
Overview of the Conflict
Overview of the Court
Basic Documents
Case Law
Selected Print Sources & Links
International Criminal Tribunal for Rwanda (ICTR)
Overview of the Conflict
Overview of the Court
 Basic Documents
Case Law
Selected Print Sources & Links
Special Court for Sierra Leone (SCSL)
Overview of the Conflict
Overview of the Court Structure
Basic Documents
Case Law
Selected Print Sources & Links
Multi-Court Sources – Online and In Print
Research Institutes and Educational Resources
Other Research Guides
Bibliography

Introduction
Despite vows of ?never again? in the aftermath of the Holocaust, late twentieth century history has been
marked by a series of brutal conflicts that have resulted in war crimes, crimes against humanity, genocide
and other serious crimes. Today, several international tribunals have been established with the goal of
prosecuting those who commit these crimes.

This guide focuses on online and print sources relating to the following three international criminal
courts: the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal
Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). The guide begins with a chart
comparing key features of these three courts. The guide then examines each court individually, providing
an overview of the underlying conflict and general background, an overview of the court, the court?s basic
documents, case law sources, and a listing of additional print and online sources for that individual court.
The next section of the guide identifies online and print resources that deal with multiple international
criminal tribunals. Finally, the last sections cover research institutes and educational resources, and other
research guides.

I have purposely omitted several key courts and tribunals from this guide in order to focus narrowly on
the ICTY, ICTR and SCSL. Researchers interested in the International Criminal Court (ICC) can consult
that section within the ASIL Guide to Electronic Resources for International Law. An excellent collection
of primary materials on the Nuremburg war crimes trials is available through the Avalon Project. Finally,
SMU?s International Criminal Courtsguide covers other tribunals including those for Cambodia, Iraq and
East Timor.

Chart Comparing the Three Courts

Date est. Establishing Number of judges Justiciable Chief prose- Location of Official language Temporal Geographic
document crimes cutor court constraints constraints

ICT May 23,UN Security16 permanentand Grave breachesCarla DelThe Hague,English andCrimes Territory of the
Y 1993 Council up to 9 ad litem of GenevaPonte The Nether-French commit- former
Resolution 827 Conventions of lands (Serbo-Croat isted since 1991 Yugoslavia
(1993) 1949; violations unofficial)
of the laws of
war; genocide;
crimes against
humanity
ICT Nov. 8,UN Security16 permanent andGenocide, Hassan Arusha, English andCrimes Territory of
R 1994 Council 18 ad litemcrimes againstBubacar Tanzania French commit- Rwanda
Resolution judges humanity, Jallow (Kinyarwanda isted between
955 (1994) serious unofficial) Jan. 1, 1994
violations of the and Dec. 1994
Geneva
Conventions of
1949
SCS Aug. 14,Treaty betweenAt least 8, and noCrimes againstDesmond deFreetown, English Crimes Territory of
L 2000 UN andmore than 11 humanity; Silva Sierra Leone (Krio is commit- Sierra Leone
government of violations of unofficial) ted since Nov.
Sierra Leone international 30, 1996
humanitarian
law; serious
crimes under
Sierra Leonean
law

International Criminal Tribunal for the Former Yugoslavia (ICTY)

Overview of the Conflict

In this section I intend to give a brief overview of the conflict in the former Yugoslavia. For a more
detailed account, see Timeline: Yugoslavia.

Since the death of Yugoslav President Josip Broz Tito in 1980 and the fall of Communism in the in early
1990s, Yugoslavia became increasingly unstable politically and socially. The resulting ten-year conflict
cost an estimated 300,000 lives and was declared the first official genocide since World War II. Since the
break-up of the former Yugoslavia, six successor states have been formed: Bosnia and Herzegovina,
Croatia, Republic of Macedonia, Serbia and Montenegro, and Slovenia.

The Yugoslav conflict was a series of successive wars that involved intra-state civil fighting and outside
NATO intervention. In June 1991, Slovenia and Croatia declared independence from Yugoslavia. After a
brief 10-day war, Slovenia succeeded in becoming independent. Croatia had a more difficult road to
independence. The Yugoslav government, led by Serb leader Slobodan Milošević sent military forces to thwart
Croatia?s efforts at independence. The resulting war lasted from 1991 to 1995.

In January 1992, Bosnia-Herzegovina and Macedonia likewise declared independence. The resulting war
in Bosnia (1992-1995) was one of the deadliest periods of the conflict. Serb forces lead campaigns of
ethnic cleansing against Moslem Bosniaks, with the worst massacre occurring in July 1995 in Srebrenica.
The NATO bombing and the Dayton Agreement signed in 1995 ended the war in Bosnia.

The next area of conflict centered on Kosovo, an area historically integrated into Serbia. The Albanian
minority in Kosovo sought autonomy or independence. Milošević and the Slav government responded with
military force and NATO intervened to end the conflict. In 2001, there were smaller-scale conflicts in Macedonia
and in southern Serbia.

All sides in the Yugoslav conflict were responsible for numerous crimes, including genocide, ethnic cleansing,
and mass rape. In April 2001, Milošević was arrested and extradited to the ICTY; he is indicted on crimes of
genocide in Bosnia and war crimes in Croatia and Kosovo. The trial of Milošević and others continues to be held in
The Hague.

Overview of the Court

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993 by United
Nations Security Council Resolution 827. The ICTY is authorized to prosecute persons responsible for
grave breaches of the 1949 Geneva Conventions, violations of the laws of war, genocide, and crimes
against humanity. The ICTY can only hear cases concerning crimes committed on the territory of the
former Yugoslavia since 1991.

The ICTY is organized into three Trial Chambers and one Appeals Chamber. Three permanent judges and
a maximum of six ad litem judges are members of each Trial Chamber. Seven permanent judges are
members of the Appeals Chamber. The working languages of the ICTY are English and French.

Basic Documents
The following basic documents of the ICTY are available at the Court?s official website.
 Statute of the Tribunal (updated April 2004)
 National legislations implementing the ICTY Statute (Greece, Romania, Hungary, Croatia, U.K.,
Austria, Belgium, Switzerland, Australia, New Zealand, Germany, Bosnia-Herzegovina, France,
Denmark, Sweden, Norway, Spain, The Netherlands, Finland, U.S., Italy)
 Agreements on the enforcement of sentences (U.K., Denmark, Germany, Spain, France, Sweden,
Austria, Norway, Finland, Italy)
 Rules of Procedure and Evidence
 Defense Counsel Materials
 Detention rules, regulations and other materials
 Practice directions

The ICTY basic documents are also available online at the University of Minnesota Human Rights Library.

In print, see Basic Documents International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991 ([Netherlands:] United Nations, International Criminal Tribunal for the former
Yugoslavia, 1995-).

Additionally, the ICTY publishes The Yearbook ([Netherlands]: United Nations, ICTY, 1995-)
documenting the activities of the ICTY and recording speeches and other background information.

The Nuremberg Trial and the Tokyo War Crimes Trials

(1945–1948)
Following World War II, the victorious Allied governments established the first
international criminal tribunals to prosecute high-level political officials and military
authorities for war crimes and other wartime atrocities. The four major Allied powers—
France, the Soviet Union, the United Kingdom, and the United States—set up the
International Military Tribunal (IMT) in Nuremberg, Germany, to prosecute and punish
“the major war criminals of the European Axis.” The IMT presided over a combined trial of
senior Nazi political and military leaders, as well as several Nazi organizations. The lesser-
known International Military Tribunal for the Far East (IMTFE) was created in Tokyo,
Japan, pursuant to a 1946 proclamation by U.S. Army General Douglas MacArthur,
Supreme Commander for the Allied Powers in occupied Japan. The IMTFE presided over a
series of trials of senior Japanese political and military leaders pursuant to its authority “to
try and punish Far Eastern war criminals.”

Needs caption
The origins, composition, and jurisdiction of the Nuremberg and Tokyo tribunals differed in
several important respects beyond their geographical differences and personalities. Plans to
prosecute German political and military leaders were announced in the 1942 St. James
Declaration. In the declaration, the United States joined Australia, Canada, China, India,
New Zealand, the Union of South Africa, the Soviet Union, and nine exiled governments of
German-occupied countries to condemn Germany’s “policy of aggression.” The Declaration
stated that these governments “placed among their principal war aims the punishment,
through the channel of organized justice, of those guilty of or responsible for these crimes,
whether they have ordered them, perpetrated them or participated in them.”
In August 1945, the four major Allied powers therefore signed the 1945 London Agreement,
which established the IMT. The following additional countries subsequently “adhered” to
the agreement to show their support: Australia, Belgium, Czechoslovakia, Denmark,
Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand,
Norway, Panama, Paraguay, Poland, Uruguay, and Yugoslavia.
The Charter of the International Military Tribunal (or Nuremberg Charter) was annexed to
the 1945 London Agreement and outlined the tribunal’s constitution, functions, and
jurisdiction. The Nuremberg tribunal consisted of one judge from each of the Allied powers,
which each also supplied a prosecution team. The Nuremberg Charter also provided that the
IMT had the authority to try and punish persons who “committed any of the following
crimes:”

 (a) Crimes Against Peace: namely, planning, preparation, initiation or

waging of a war of aggression, or a war in violation of international
treaties, agreements or assurances, or participation in a Common Plan or
Conspiracy for the accomplishment of any of the foregoing;
 (b) War Crimes: namely, violations of the laws or customs of war. Such
violations shall include, but not be limited to, murder, ill-treatment or
deportation to slave labor or for any other purpose of civilian population of
or in occupied territory, murder or ill-treatment of prisoners of war or
persons on the seas, killing of hostages, plunder of public or private
property, wanton destruction of cities, towns, or villages, or devastation
not justified by military necessity;
 (c) Crimes Against Humanity: namely, murder, extermination,
enslavement, deportation, and other inhumane acts committed against
any civilian population, before or during the war, or persecutions on
political, racial, or religious grounds in execution of or in connection with
any crime within the jurisdiction of the Tribunal, whether or not in violation
of domestic law of the country where perpetrated.

The IMT prosecutors indicted twenty-two senior German political and military leaders,
including Hermann Goering, Rudolph Hess, Joachim von Ribbentrop, Alfred Rosenberg,
and Albert Speer. Nazi leader Adolf Hitler was not indicted because he had committed
suicide in April 1945, in the final days before Germany’s surrender. Seven Nazi
organizations also were indicted. The prosecutors sought to have the tribunal declare that
these organizations were “criminal organizations” in order to facilitate the later prosecution
of their members by other tribunals or courts.
The Nuremberg Trial lasted from November 1945 to October 1946. The tribunal found
nineteen individual defendants guilty and sentenced them to punishments that ranged from
death by hanging to fifteen years’ imprisonment. Three defendants were found not guilty,
one committed suicide prior to trial, and one did not stand trial due to physical or mental
illness. The Nuremberg Tribunal also concluded that three of the seven indicted Nazi
organizations were “criminal organizations” under the terms of the Charter: the Leadership
Corps of the Nazi party; the elite “SS” unit, which carried out the forced transfer,
enslavement, and extermination of millions of persons in concentration camps; and the
Nazi security police and the Nazi secret police, commonly known as the ‘SD’ and ‘Gestapo,’
respectively, which had instituted slave labor programs and deported Jews, political
opponents, and other civilians to concentration camps.
Unlike the IMT, the IMTFE was not created by an international agreement, but it
nonetheless emerged from international agreements to try Japanese war criminals. In July
1945, China, the United Kingdom, and the United States signed the Potsdam Declaration, in
which they demanded Japan’s “unconditional surrender” and stated that “stern justice shall
be meted out to all war criminals.” At the time that the Potsdam Declaration was signed, the
war in Europe had ended but the war with Japan was continuing. The Soviet Union did not
sign the declaration because it did not declare war on Japan until weeks later, on the same
day that the United States dropped the second atomic bomb at Nagasaki. Japan surrendered
six days later, on August 14, 1945.
At the subsequent Moscow Conference, held in December 1945, the Soviet Union, the
United Kingdom, and the United States (with concurrence from China) agreed to a basic
structure for the occupation of Japan. General MacArthur, as Supreme Commander of the
Allied Powers, was granted authority to “issue all orders for the implementation of the
Terms of Surrender, the occupation and control of Japan, and all directives supplementary
thereto.”
In January 1946, acting pursuant to this authority, General MacArthur issued a special
proclamation that established the IMTFE. The Charter for the International Military
Tribunal for the Far East was annexed to the proclamation. Like the Nuremberg Charter, it
laid out the composition, jurisdiction, and functions of the tribunal.
The Charter provided for MacArthur to appoint judges to the IMTFE from the countries that
had signed Japan’s instrument of surrender: Australia, Canada, China, France, India, the
Netherlands, Philippines, the Soviet Union, the United Kingdom, and the United States.
Each of these countries also had a prosecution team.
As with the IMT, the IMTFE had jurisdiction to try individuals for Crimes Against Peace,
War Crimes, and Crimes Against Humanity, and the definitions were nearly verbatim to
those contained in the Nuremberg Charter. The IMTFE nonetheless had jurisdiction over
crimes that occurred over a greater period of time, from the 1931 Japanese invasion of
Manchuria to Japan’s 1945 surrender.
The IMTFE presided over the prosecution of nine senior Japanese political leaders and
eighteen military leaders. A Japanese scholar also was indicted, but charges against him
were dropped during the trial because he was declared unfit due to mental illness. Japanese
Emperor Hirohito and other members of the imperial family were not indicted. In fact, the
Allied powers permitted Hirohito to retain his position on the throne, albeit with
diminished status.
The Tokyo War Crimes Trials took place from May 1946 to November 1948. The IMTFE
found all remaining defendants guilty and sentenced them to punishments ranging from
death to seven years’ imprisonment; two defendants died during the trial.
After the Nuremberg and Tokyo War Crimes trials, additional trials were held to try “minor”
war criminals. These subsequent trials, however, were not held by international tribunals
but instead by domestic courts or by tribunals operated by a single Allied power, such as
military commissions. In Germany, for example, each of the Allied powers held trials for
alleged war criminals found within their respective zones of occupation. The United States
held twelve such trials from 1945 to 1949, each of which combined defendants who were
accused of similar acts or had participated in related events. These trials also were held in
Nuremberg and thus became known informally as the “subsequent Nuremberg trials.” In
Japan, several additional trials were held in cities outside Tokyo.
The Nuremberg and Tokyo tribunals contributed significantly to the development of
international criminal law, then in its infancy. For several decades, these tribunals stood as
the only examples of international war crimes tribunals, but they ultimately served as
models for a new series of international criminal tribunals that were established beginning
in the 1990s. In addition, the Nuremberg Charter’s reference to “crimes against peace,” “war
crimes,” and “crimes against humanity” represented the first time these terms were used
and defined in an adopted international instrument. These terms and definitions were
adopted nearly verbatim in the Charter of the IMTFE, but have been replicated and
expanded in a succession of international legal instruments since that time.

THE ROAD TO THE NUREMBERG TRIALS

Shortly after Adolf Hitler came to power as chancellor of
Germany in 1933, he and his Nazi government began
implementing policies designed to persecute German-Jewish
people and other perceived enemies of the Nazi state. Over
the next decade, these policies grew increasingly repressive
and violent and resulted, by the end of World War II (1939-45),
in the systematic, state-sponsored murder of some 6 million
European Jews (along with an estimated 4 million to 6 million
non-Jews).

Did You Know?

The death sentences imposed in October 1946

were carried out by Master Sergeant John C.
Woods (1903-50), who told a reporter from
Time magazine that he was proud of his work.
"The way I look at this hanging job, somebody
has to do it . . . ten men in 103 minutes. That's
fast work."

In December 1942, the Allied leaders of Great Britain, the

United States and the Soviet Union “issued the first joint
declaration officially noting the mass murder of European
Jewry and resolving to prosecute those responsible for
violence against civilian populations,” according to the United
States Holocaust Memorial Museum (USHMM). Joseph
Stalin (1878-1953), the Soviet leader, initially proposed the
execution of 50,000 to 100,000 German staff officers. British
Prime Minister Winston Churchill (1874-1965) discussed the
possibility of summary execution (execution without a trial) of
high-ranking Nazis, but was persuaded by American leaders
that a criminal trial would be more effective. Among other
advantages, criminal proceedings would require
documentation of the crimes charged against the defendants
and prevent later accusations that the defendants had been
condemned without evidence.

There were many legal and procedural difficulties to overcome

in setting up the Nuremberg trials. First, there was no
precedent for an international trial of war criminals. There
were earlier instances of prosecution for war crimes, such as
the execution of Confederate army officer Henry Wirz (1823-
65) for his maltreatment of Union prisoners of war during
the American Civil War (1861-65); and the courts-martial held
by Turkey in 1919-20 to punish those responsible for the
Armenian genocide of 1915-16. However, these were trials
conducted according to the laws of a single nation rather
than, as in the case of the Nuremberg trials, a group of four
powers (France, Britain, the Soviet Union and the U.S.) with
different legal traditions and practices.

The Allies eventually established the laws and procedures for

the Nuremberg trials with the London Charter of the
International Military Tribunal (IMT), issued on August 8, 1945.
Among other things, the charter defined three categories of
crimes: crimes against peace (including planning, preparing,
starting or waging wars of aggression or wars in violation of
international agreements), war crimes (including violations of
customs or laws of war, including improper treatment of
civilians and prisoners of war) and crimes against humanity
(including murder, enslavement or deportation of civilians or
persecution on political, religious or racial grounds). It was
determined that civilian officials as well as military officers
could be accused of war crimes.

The city of Nuremberg (also known as Nurnberg) in the

German state of Bavaria was selected as the location for the
trials because its Palace of Justice was relatively undamaged
by the war and included a large prison area. Additionally,
Nuremberg had been the site of annual Nazi propaganda
rallies; holding the postwar trials there marked the symbolic
end of Hitler’s government, the Third Reich.

THE MAJOR WAR CRIMINALS’ TRIAL: 1945-46

The best-known of the Nuremberg trials was the Trial of Major
War Criminals, held from November 20, 1945, to October 1,
1946. The format of the trial was a mix of legal traditions:
There were prosecutors and defense attorneys according to
British and American law, but the decisions and sentences
were imposed by a tribunal (panel of judges) rather than a
single judge and a jury. The chief American prosecutor was
Robert H. Jackson (1892-1954), an associate justice of the
U.S. Supreme Court. Each of the four Allied powers supplied
two judges–a main judge and an alternate.

Twenty-four individuals were indicted, along with six Nazi

organizations determined to be criminal (such as the
“Gestapo,” or secret state police). One of the indicted men
was deemed medically unfit to stand trial, while a second man
killed himself before the trial began. Hitler and two of his top
associates, Heinrich Himmler (1900-45) and Joseph
Goebbels (1897-45), had each committed suicide in the spring
of 1945 before they could be brought to trial. The defendants
were allowed to choose their own lawyers, and the most
common defense strategy was that the crimes defined in the
London Charter were examples of ex post facto law; that is,
they were laws that criminalized actions committed before the
laws were drafted. Another defense was that the trial was a
form of victor’s justice–the Allies were applying a harsh
standard to crimes committed by Germans and leniency to
crimes committed by their own soldiers.

As the accused men and judges spoke four different

languages, the trial saw the introduction of a technological
innovation taken for granted today: instantaneous translation.
IBM provided the technology and recruited men and women
from international telephone exchanges to provide on-the-spot
translations through headphones in English, French, German
and Russian.

In the end, the international tribunal found all but three of the
defendants guilty. Twelve were sentenced to death, one in
absentia, and the rest were given prison sentences ranging
from 10 years to life behind bars. Ten of the condemned were
executed by hanging on October 16, 1946. Hermann Göring
(1893-1946), Hitler’s designated successor and head of the
“Luftwaffe” (German air force), committed suicide the night
before his execution with a cyanide capsule he had hidden in a
jar of skin medication.

SUBSEQUENT TRIALS: 1946-49

Following the Trial of Major War Criminals, there were 12
additional trials held at Nuremberg. These proceedings,
lasting from December 1946 to April 1949, are grouped
together as the Subsequent Nuremberg Proceedings. They
differed from the first trial in that they were conducted before
U.S. military tribunals rather than the international tribunal
that decided the fate of the major Nazi leaders. The reason for
the change was that growing differences among the four Allied
powers had made other joint trials impossible. The subsequent
trials were held in the same location at the Palace of Justice
in Nuremberg.

These proceedings included the Doctors Trial (December 9,

1946-August 20, 1947), in which 23 defendants were accused
of crimes against humanity, including medical experiments on
prisoners of war. In the Judges Trial (March 5-December 4,
1947), 16 lawyers and judges were charged with furthering the
Nazi plan for racial purity by implementing the eugenics laws
of the Third Reich. Other subsequent trials dealt with German
industrialists accused of using slave labor and plundering
occupied countries; high-ranking army officers accused of
atrocities against prisoners of war; and SS officers accused of
violence against concentration camp inmates. Of the 185
people indicted in the subsequent Nuremberg trials, 12
defendants received death sentences, 8 others were given life
in prison and an additional 77 people received prison terms of
 varying lengths, according to the USHMM. Authorities later
reduced a number of the sentences.

AFTERMATH
The Nuremberg trials were controversial even among those
who wanted the major criminals punished. Harlan Stone (1872-
1946), chief justice of the U.S. Supreme Court at the time,
described the proceedings as a “sanctimonious fraud” and a
“high-grade lynching party.” William O. Douglas (1898-1980),
then an associate U.S. Supreme Court justice, said the Allies
“substituted power for principle” at Nuremberg.

Nonetheless, most observers considered the trials a step

forward for the establishment of international law. The
findings at Nuremberg led directly to the United
Nations Genocide Convention (1948) and Universal Declaration
of Human Rights (1948), as well as the Geneva Convention on
the Laws and Customs of War (1949). In addition, the
International Military Tribunal supplied a useful precedent for
the trials of Japanese war criminals in Tokyo (1946-48); the
1961 trial of Nazi leader Adolf Eichmann (1906-62); and the
establishment of tribunals for war crimes committed in the
former Yugoslavia (1993) and in Rwanda (1994).

INTERNATIONAL MILITARY TRIBUNAL AT NUREMBERG

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BACKGROUND

Beginning in the winter of 1942, the governments of the Allied powers announced their intent to
punish Nazi war criminals.
On December 17, 1942, the leaders of the United States, Great Britain, and the Soviet Union issued
the first joint declaration officially noting the mass murder of European Jewry and resolving to
prosecute those responsible for violence against civilian populations. Though some political leaders
advocated summary executions instead of trials, eventually the Allies decided to hold an
International Military Tribunal. In the words of Cordell Hull, “a condemnation after such a
proceeding will meet the judgment of history, so that the Germans will not be able to claim that an
admission of war guilt was extracted from them under duress.”

In October 1943, US president Franklin D. Roosevelt, British prime minister Winston Churchill, and
Soviet leader Josef Stalin signed the Moscow Declaration. The declaration stated that at the time of
an armistice, persons deemed responsible for war crimes would be sent back to those countries in
which the crimes had been committed and would be judged according to the laws of the nation
concerned. Major war criminals, whose crimes could be assigned no particular geographic location,
would be punished by joint decisions of the Allied governments.

THE INTERNATIONAL MILITARY TRIBUNAL

The trials of leading German officials before the International Military Tribunal (IMT), the best
known of the postwar war crimes trials, formally opened in Nuremberg, Germany, on November 20,
1945, just six and a half months after Germany surrendered. On October 18, 1945, the chief
prosecutors of the IMT had read the indictments against 24 leading Nazi officials. The four charges
brought against these officials were:
1. Conspiracy to commit crimes against peace, war crimes, and crimes against humanity
2. Crimes against peace
3. War crimes
4. Crimes against humanity
Each of the four Allied nations—the United States, Great Britain, the Soviet Union, and France—
supplied a judge and a prosecution team. Lord Justice Geoffrey Lawrence of Great Britain served as
the court's presiding judge. The trial's rules were the result of delicate reconciliations of the
Continental and Anglo-American judicial systems.

A team of translators provided simultaneous translations of all proceedings in four languages:

English, French, German, and Russian.

THE DEFENDANTS

After much debate, 24 defendants were chosen to represent a cross-section of Nazi diplomatic,
economic, political, and military leadership.
Adolf Hitler, Heinrich Himmler, and Joseph Goebbels never stood trial, having committed suicide
before the end of the war. The IMT decided not to try them posthumously so as not to create the
impression that they might still be alive.

In fact, only 21 defendants appeared in court. German industrialist Gustav Krupp was included in
the original indictment, but he was elderly and in failing health. It was decided in preliminary
hearings to exclude him from the proceedings. Nazi party secretary Martin Bormann was tried and
convicted in absentia. Head of the German Labor Front Robert Ley committed suicide on the eve of
the trial.
THE CHARGES

The IMT had indicted the defendants on charges of crimes against peace, war crimes, and crimes
against humanity. The IMT defined crimes against humanity as "murder, extermination,
enslavement, deportation...or persecutions on political, racial, or religious grounds."
A fourth charge of conspiracy was added (1) to cover crimes committed under domestic Nazi law
before the start of World War II and (2) so that subsequent tribunals would have jurisdiction to
prosecute any individual belonging to a proven criminal organization. Therefore the IMT also
indicted several Nazi organizations deemed to be criminal, namely: the Reich Cabinet, the
Leadership Corps of the Nazi Party, the Elite Guard (SS), the Security Service (SD), the Secret State
Police (Gestapo), the Stormtroopers (SA), and the General Staff and High Command of the German
Armed Forces.
The defendants were entitled to a legal counsel of their choosing.

THE VERDICT

American chief prosecutor Robert Jackson decided to argue his case primarily on the basis of
mounds of documents written by the Nazis themselves rather than eyewitness testimony so that the
trial could not be accused of relying on biased or tainted testimony. Testimony presented at
Nuremberg revealed much of what we know about the Holocaust including the details of
the Auschwit death machinery, the destruction of the Warsaw ghetto, and the estimate of six
million Jewish victims.
The judges delivered their verdict on October 1, 1946. Three of four judges were needed for
conviction.
Twelve defendants were sentenced to death, among them Joachim von Ribbentrop, Hans
Frank, Alfred Rosenberg, and Julius Streicher. They were hanged, cremated in Dachau, and their
ashes dropped in the Isar River. Hermann Goering escaped the hangman's noose by committing
suicide the night before. The IMT sentenced three defendants to life imprisonment and four to
prison terms ranging from 10 to 20 years. It acquitted three of the defendants.
OTHER TRIALS

The IMT trial at Nuremberg was just one of the earliest and most famous of several subsequent war
crimes trials. Over 400 visitors attended the proceedings each day, as well as 325 correspondents
representing 23 different countries.
The overwhelming majority of post-1945 war crimes trials involved lower-level officials and officers.
They included concentration camp guards and commandants, police officers, members of
the Einsatgruppen (mobile killing units), and doctors who participated in medical experiments.
These war criminals were tried by military courts in the British, American, French, and Soviet zones
of occupied Germany and Austria, and also in Italy in the immediate postwar years.
On October 17, 1946, only one day after the IMT defendants were executed, President Harry Truman
appointed Telford Taylor to be the new American chief war crimes prosecutor. He went on to
prosecute 183 high-ranking German officials in 12 separate trials. These American military tribunals
are often referred to collectively as the Subsequent Nuremberg Proceedings. Gestapo and SS
members, as well as German industrialists, were tried for their roles in implementing the
Nuremberg Laws, "Aryanization," mass shootings of Jews in concentration camps, shootings by
Einsatgruppen, and deportations.
Other war criminals were tried by the courts of those countries where they had committed their
crimes. In 1947, a court in Poland sentenced Auschwit camp commandant Rudolf Hoess to death. In
the courts of West Germany, many former Nazis did not receive severe sentences, with the claim of
following orders from superiors often ruled a mitigating circumstance. A number of Nazi criminals
therefore returned to normal lives in German society, especially in the business world.

The efforts of Nazi hunters (such as Simon Wiesenthal and Beate Klarsfeld) led to the capture,
extradition, and trial of a number of Nazis who had escaped from Germany after the war. The trial
of Adolf Eichmann, held in Jerusalem in 1961, captured worldwide attention.
Many war criminals, however, were never brought to trial or punished.
Extraordinary Chambers
of the Courts of
Cambodia
Letter to the Secretariat of the Rules and Procedure
Committee

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To: Secretariat of the Rules and Procedure Committee

Extraordinary Chambers of the Courts of Cambodia

Human Rights Watch respectfully submits comments on

three areas of the ECCC Draft Internal Rules. We hope
that our views may assist in revising the rules in such a
way that they will conform more closely to international
fair trial standards. The three areas of concern we wish
to address are:

 trials in absentia;
 the independence of the Defense Office and the
Victims Unit; and
 the public nature of the proceedings.

I. Trials in Absentia
Proposed rule 79 (1) of the ECCC Draft Internal Rules
states in brackets "The Accused may not be tried in
absentia." A footnote accompanying the text correctly
states that this reflects international standards.
However, it also indicates a dispute over this provision
exists between the national law judges and the
international law judges. As a translation of the national
law judges' separate paper has not been made available
at the time of this writing, this note will simply state
Human Rights Watch's view on this issue. This is not
meant to be a comprehensive analysis of the issues
surrounding trials in absentia, but it does provide some
background on the manner in which other legal systems
treat the issue.

We believe that allowing trials in absentia would

seriously undermine the work of the Extraordinary
Chambers by casting doubt upon the credibility of the
process itself. Trials in absentia compromise the ability
of an accused to exercise his or her rights under article
14 of the International Covenant on Civil and Political
Rights (ICCPR), a treaty which binds Cambodia. The
potentially compromised rights include the right to be
present during the trial, the right to defend his or her
self through counsel of choice, and the right to examine
witnesses. Moreover, since the creation of the ad hoc
court for the former Yugoslavia, all international and
mixed tribunals have rejected trials in absentia, making
it clear there is an increasing international acceptance of
a standard prohibiting these sorts of proceedings.

A. International Criminal Tribunals

The various international tribunals set up to prosecute
violations of international criminal law have all dealt
with the issue of trials in absentia. One can observe in
their practices a definite trend toward disallowing
trials in absentia.

International Criminal Court ("ICC")

The Rome Statute of the International Criminal Court,
adopted on July 17, 1998, established international
standards for the conduct of trials for international
crimes such as genocide, war crimes, and crimes against
humanity.

Article 63 of the Rome Statute for the ICC prohibits

trials in absentia except in the narrow circumstances
described below. It states:

"(1) The accused shall be present during the trial.

(2) If the accused, being present before the Court,

continues to disrupt the trial, the Trial Chamber may
remove the accused and shall make provision for him or
her to observe the trial and instruct counsel from outside
the courtroom, through the use of communications
technology, if required. Such measures shall be taken
only in exceptional circumstances after other reasonable
alternatives have proved inadequate, and only for such
duration as is strictly required. "
[1]

At the Rome Conference discussing the creation of the

ICC, there were three competing perspectives on
trials in absentia. Some delegations believed in
[2]

absentia hearings should be impermissible in all cases,

except where the accused disrupted the trial. These
delegations believed that trials in absentia would
degenerate into show trials and would quickly discredit
the ICC. A second group believed trials in absentia were
of little practical value because the accused would have
the right to a new trial upon appearance before the
court. A third group believed that due to the nature of
the crimes in the statute, it would often be impossible to
compel the appearance of the accused. Thus, for the
court to promote peace, justice, and reconciliation, it
would be necessary to hold trials in the absence of the
defendants. The first view prevailed.[3]

Ad Hoc International Tribunals and the Sierra

Leone Special Court
The International Criminal Tribunal for the Former
Yugoslavia ("ICTY"), the International Criminal Tribunal
for Rwanda ("ICTR"), and the Sierra Leone Special Court
all ban trials in absentia.

Article 20 of the ICTR Statute provides that the accused

has the right, "to be tried in his or her presence, and to
defend himself or herself in person or through legal
assistance of his or her own choosing." Similarly, article
[4]

21 of the ICTY Statute ICTY provides that the accused

has the right "to be tried in his presence, and to defend
himself in person or through legal assistance of his own
choosing ...."
[5]

The use of trials in absentia was a contested issue during

the drafting of the ICTY Statute, upon which the ICTR
Statute is also based, as a compromise was sought
between the different ways civil law, common law, and
international jurisdictions deal with trials in absentia.
The drafters of the statute for the ICTY specifically
rejected the French recommendation to allow
proceedings in absentia with an automatic retrial when
the accused is arrested.[6]

The United Nations Secretary General's Report on the

establishment of the ICTY and its statute stated:

"A trial should not commence until the accused is

physically present before the international tribunal.
There is a widespread perception the trials in
absentia should not be provided for in the statute [of the
International Criminal Court for the former Yugoslavia]
as this would not be consistent with Article 14 of the
International Covenant of Civil and Political Rights,
which provides that the accused should be tried in his
presence. "
[7]

Further, in Prosecutor v. Delalic, the defendant was not

present one morning for unknown reasons and also had
not explicitly waived through his counsel his right to be
present. In that case, there were multiple defendants,
and the Office of the Prosecutor proposed tendering
documents as a group and allowing the defense to object
later. Rejecting that idea, the court adjourned finding
that the right to be present at trial is virtually absolute in
the absence of a clear waiver. [8]

It is also notable that two of the most notorious accused

whose alleged crimes would be in the jurisdiction of the
ICTY, Radovan Karadzic and Ratko Mladic, are not in
custody of the tribunal. Instead of proceeding with
[9]

trials in absentia, the court has delayed their trials with

the hope that they will be brought into custody.

Article 17(4)(d) of the Statute of the Special Court for

Sierra Leone also provides that the accused shall have
the right "to be tried in his or her presence . . .." Rule
[10]

60 of the Special Court's Rules of Procedure and

Evidence further states that "an accused may not be
tried in his absence, unless: (i) the accused has made his
initial appearance, has been afforded the right to appear
at his own trial, but refuses to do so; or (ii) the accused,
having made his initial appearance, is at large and
refuses to appear in court." This is consistent with the
[11]
trend in international courts disfavoring trials in
absentia.

B. Interim Administrations
In East Timor, the transitional courts operate under rules
requiring the accused to be present at trial. Article 30 of
the Transitional Rules of Criminal Procedure provides
that the accused must be present during the trial. Article
5(1) states that "[n]o trial of a person shall be held in
absentia, except in the circumstances defined in the
present regulation." Article 5(2) provides that, if at any
stage following the preliminary hearing the accused
"flees or is otherwise voluntarily absent, the proceedings
may continue until their conclusion." Article 48(2)
provides that court may order the removal of the
accused from the courtroom and continue the
proceedings in their absence if they persist in disruptive
conduct. [12]

Similarly, the interim administration in Kosovo passed a

regulation in January 2001 prohibiting trials in
absentia for serious violations of humanitarian law on
the basis of the "egregious nature of violations of
international humanitarian law and the particular need
to ensure the proper administration of justice in cases
where such crimes have been committed" and the "rights
of the accused, and in particular, the right to a fair
hearing." Article 1 states: "No person may be tried in
absentia for serious violations of international
humanitarian law, as defined in Chapter XVI of the
applicable Yugoslav Criminal Code or in the [ICC
Statute]." [13]

C. International Law Generally

The trend in international law is to recognize the
importance of a defendant's right to be physically
present and to participate in his or her trial. Trials in
absentia are provided for only in exceptional
circumstances or where there has been an explicit,
unequivocal waiver of one's right to be present.

Article 14(3)(d) of the International Covenant on Civil

and Political Rights states that everyone shall be entitled
"[t]o be tried in his presence, and to defend himself in
person or through legal assistance of his own choosing . .
.." The Human Rights Committee further explained this
[14]

provision in General Comment No. 13, which states

"[t]he accused or his lawyer must have the right to act
diligently and fearlessly in pursuing all available
defenses and the right to challenge the conduct of the
case if they believe it to be unfair. When exceptionally for
justified reasons trials in absentia are held, strict
observance of the rights of the defense is all the more
necessary." However, it does not define "justified
[15]

reasons" for holding trials in absentia.

Article 6(3) of the European Convention on Human

Rights and Fundamental Freedoms specifies that
everyone charged with a criminal offense has the right
"to defend himself in person or through legal assistance
of his own choosing..." The European Court of Human
[16]

Rights interpreted article 6 of the European Convention

on Human Rights and Fundamental Freedoms in Colozza
v. Italy. It stated, "Although this is not expressly
mentioned in paragraph 1 of Article 6, the object and
purpose of the Article taken as a whole show that a
person ‘charged with a criminal offence' is entitled to
take part in the hearing. Moreover, sub-paragraphs (c),
(d) and (e) of paragraph 3 guarantee to ‘everyone
charged with a criminal offence' the right ‘to defend
himself in person,' ‘to examine or have examined
witnesses' and ‘to have the free assistance of an
interpreter if he cannot understand or speak the
language used in court,' and it is difficult to see how he
could exercise these rights without being present." Any
[17]

waiver of the right to be present must be clear and

unequivocal. [18]

D. Civil Law
Trials in absentia may be allowed in civil jurisdictions
provided that the defendant's rights are sufficiently
protected and there is a right to automatic retrial when a
defendant surrenders or is arrested. However, some
[19]

civil jurisdictions such as Germany do not permit

trials in absentiawhere the accused is charged with
serious crimes. Russia has banned trials in absentia. On
[20]

1 July 2002, a new Code of Criminal Procedure came into

effect which-in contrast to previous law and practice-
forbids any type of trial in absentia. According to Dmitri
N. Kozak, President Putin's Deputy Chief of Staff, the
code is intended to give Russia "a criminal procedure
that corresponds to that of world standards and of
civilized countries." [21]

Although the French Code of Criminal Procedure allows

trials in absentia, the French government in its
submissions on the question of trials in absentia to the
European Court of Human Rights in Krombach v.
France emphasized that "the accused's attendance at his
or her trial was essential, both in the accused's interest
and in the interest of the victims..." The French
[22]

government went on to describe the important role of

the accused at trial:
"The accused was called upon to present his or her
version of the events and to reply to the questions of the
judges, the jurors, and the public prosecutor. He or she
could, among other things, challenge the conclusions of
the expert witnesses and the depositions of the ordinary
witnesses, call witnesses for the defense and request a
confrontation with the victims. Lastly, in the event of a
finding of guilt, the accused's presence enabled the
judges to tailor the penalty to his or her personal
circumstances. In the [French] Government's
submission, there could be no question of the court
trying a faceless defendant whom it had had no
opportunity of observing or hearing, as justice could not
be done solely on the basis of the submissions of a
lawyer... "
[23]

In Krombach, the European Court of Human Rights

confirmed the line of cases holding that proceedings that
take place in the accused's absence are not of
themselves incompatible with the right to be present at
trial in the Convention for the Protection of Human
Rights and Fundamental Freedoms if the accused may
subsequently obtain a fresh determination of the
charges(emphasis added). It held the "capital importance
that a defendant should appear" applies to both criminal
courts and assize courts. The court also confirmed that
[24]

a person charged with a criminal offence does not lose

the right to be effectively defended by a lawyer on
account of not being present at trial.
[25]

Thus, if a trial in absentia is to take place, certain

safeguards must be provided which are not contained in
the ECCC Draft Internal Rules and which the ECCC, with
its temporal restrictions, may not be able to provide. The
European Court of Human Rights has found that for a
trial in absentia to be consistent the defendant's right to
be present at trial, the following conditions must be met.
First, a defendant must have notification of his or her
impending trial. Second, a defendant has to
[26]

unequivocally and explicitly waive his or her right to be

present at trial. Silence from the defendant after notice
[27]

has been attempted does not constitute a waiver. Third,

[28]

a defendant must have the right to representation.

Finally as mentioned above, the defendant must be able
[29]

to subsequently obtain from a court which has heard him

a fresh determination of the merits of the charge. Not
[30]

only are these provisions not in the rules, on the

contrary, footnote 137 at Draft Internal Rules 79 (1)
indicates that the temporal context of the ECCC means
"there is little prospect for retrial once the person is
arrested." In these circumstances, where safeguards
[31]

cannot be guaranteed to a defendant and where retrial

before the ECCC may not be possible because the ECCC
may be closed by the time the person convicted in
absentia is in custody, it is all the more important to
explicitly prohibit trials in absentia.

E. Common Law
Trials in absentia are generally not allowed in common
law jurisdictions. For example, the United States
Supreme Court has found that when a defendant is
absent from the commencement of the trial, he or she
cannot be tried in absentia because an accused has a
right to be present at every stage in a proceeding.
Exceptions to this rule are limited to a situation in
[32]

which a defendant flees or disappears in the midst of a

trial which can constitute a waiver of the defendant's
right to be present. A defendant also waives his or her
[33]

right to be present where a defendant is warned, but his

or her continued disruptive conduct requires his or her
removal from the courtroom. [34]

The right to be present at one's trial is a fundamental

guarantee and can only be derogated from in certain
limited circumstances. We believe the process by which
alleged perpetrators of serious crimes are brought to
justice will have a real impact on ending impunity for
these crimes. If the process is viewed as unfair, this
perception will create an additional obstacle to a society
transitioning to one characterized by the rule of law and
respect for human rights.

II. Independence of the Defense Office and Victims

Office
Proposed rules 12(3) and 13(3) present alternative
propositions for the registration of foreign attorneys who
may appear as counsel for the defense or for victims. The
first proposition is "Lawyers admitted to practice law in
a foreign country shall register with the Bar Association
of the Kingdom of Cambodia in a special list which
recognizes the right to represent clients before the
ECCC as co-lawyers." The second alternative is for the
Defense Unit or the Victims Unit to create and maintain
a list of lawyers approved to appear before the ECCC
and other professionals approved to be members of their
teams. Human Rights Watch strongly favors allowing the
Defense Office or Victims Unit to control the list of
approved lawyers rather than involving the Bar
Association. Our experience with other courts comprised
of both national and international staff indicates that
allowing the defense office and the victims office to
control who is on the list of approve lawyers ensures
independence and increases the likelihood that the lists
will contain qualified lawyers. It also guards against the
possibility that registration will be manipulated for
political reasons by outside parties.

A. Selection of Foreign Counsel in Other Tribunals

The Special Court for Sierra Leone

At the Special Court for Sierra Leone, rule 44 on
Appointment and Qualifications of Counsel of the Rules
of Procedure and Evidence states:

"(A) Counsel engaged by a suspect or an accused shall

file his power of attorney with the Registrar at the
earliest opportunity. Subject to verification by the
Registrar, a counsel shall be considered qualified to
represent a suspect or accused, provided that he has
been admitted to the practice of law in a State and
practiced criminal law for a minimum of five years."

There is no requirement that defense counsel register

with the Bar Association of Sierra Leone.

The Special Court for Sierra Leone was the first court
Human Rights Watch examined in which it was
contemplated that national and international lawyers
would work together representing defendants. In our
report on the court, we noted that the experience of the
ad hoc tribunals demonstrated that investigating,
prosecuting, and defending cases involving serious
crimes present significant challenges due to the complex
issues involved, the evolving nature of international
criminal law and trial practice, the need for appropriate
treatment of witnesses and victims, and the emotionally
charged nature of the proceedings. Because some
members of the defense team may not have any previous
experience in international criminal law, we found that
training for defense counsel and investigators was vital
to ensuring quality representation. In our report we
recommended that the Defense Office hold mandatory
trainings regularly for defense counsel on issues
including substantive international law and treatment of
witnesses and victims. Similarly, allowing the ECCC
[35]

Defense Unit - and the Victims Unit - to control the list of

qualified lawyers ensures that they can mandate training
when necessary which will improve the quality of
representation.

War Crimes Chamber in Bosnia and Herzegovina

The War Crimes Chamber, which was established in early
2005, provides an excellent example of the function of a
defense counsel office. In this hybrid court, the Criminal
Defense Support Section acts as the licensing authority
for those attorneys who wish to appear before the State
Court's War Crimes Chamber by maintaining a list of
those eligible to appear as defense counsel and outlining
the criteria that defense counsel must meet in order to
be included on the list. As at the ECCC, the Criminal
Defense Unit in Bosnia is charged with the responsibility
of providing training courses for advocates seeking to
fulfill the criteria for inclusion on the list and continuing
their professional training. Allowing the defense office
this degree of control over the quality of defense counsel
promotes effective representation of defendants in war
crimes cases. No requirement for registration with the
[36]

local bar association exists.

Iraqi High Tribunal

In contrast, the Iraqi High Tribunal, established to
prosecute violations of international humanitarian law
under the Ba'ath party government, had the potential to
allow outside interference with accreditation of counsel.
Although article 19(4)(d) of the Iraqi High Tribunal
Statute permits an accused to hire a non-Iraqi lawyer
provided the principal lawyer is Iraqi, the pre-existing
Iraqi Law of the Legal Profession required non-Arab
lawyers seeking to appear before an Iraqi court to obtain
approval from the Ministry of Justice. Arab non-Iraqi
[37]

lawyers were required to obtain approval from the Iraqi

Bar Association by demonstrating they were in good
standing with their national legal profession. Allowing
[38]

outsiders control over which foreign lawyers were

permitted to appear meant that political influences could
come into play at the court. Indeed the Minister of
Justice at one point repeatedly stated he would refuse to
approve non-Arab foreign lawyers who sought to appear
in the trial. The lack of clarity in the rules about
[39]

granting permission for lawyers to appear before the

Tribunal resulted in the court being arbitrary about
whether it allowed foreign lawyers to make appearances
in court, flip-flopping from one position to the other.
Furthermore, the confusion resulted in delays in the
appointment of defense counsel.

The negative experience at the Iraqi High Tribunal, in

contrast to the positive experience at the Bosnian War
Crimes Chamber, demonstrates the importance of
allowing the Defense Office or the Victims Unit to retain
control over the accreditation of lawyers appearing
before the ECCC. It not only shields the court from
possible outside manipulation, it will lead to higher
quality defense and victims' counsel since safeguards
will be in place to ensure that accredited lawyers are
adequately trained and qualified. Ceding that role to
outside parties, who may have different agendas, has
potentially disastrous implications.
III. Public Hearings
The ECCC draft internal rules should include more
unambiguous language favoring public hearings,
particularly in the pre-trial phase.

The right to a public trial is a fundamental safeguard of

criminal procedure well-established in international
human rights law. The Universal Declaration of Human
Rights' article 11 unequivocally states that "[e]veryone
charged with a penal offense has the right to be
presumed innocent until proved guilty according to law
in a public trial at which he has had all the guarantees
necessary for his defense."[40]

As the European Court of Human Rights held: "This

public character protects litigants against the
administration of justice in secret with no public
scrutiny; it is also one of the means whereby confidence
in the courts can be maintained. By rendering the
administration of justice transparent, publicity
contributes to the achievement of the aim of article 6(1),
namely a fair trial." The public nature of the trial
[41]

therefore is intended to protect the interests of the

accused. However, it is also in the interest of judicial
authorities to work in this manner so that they will retain
popular confidence. The value of a public trial has been
summarized as being to "ensure fairness to the
defendant, maintain public confidence in the criminal
justice system, provide an outlet for community reaction
to crime, ensure that judges and prosecutors fulfill their
duties responsibly, encourage witnesses to come
forward, and discourage perjury." [42]

The importance of a public trial is even more pronounced

in the context of ad hoc tribunals that seek to address
extraordinary violations of human rights. ICTY Appeals
Chamber Judge Florence Mumba asserts that even
though article 14 of the ICCPR allows for exceptions to
the right of the accused to a public trial, public hearings
have proven to be an important element of a legitimate
judicial system. She finds that public hearings "serve an
important educational purpose, by helping people
understand how the law is applied to facts that
constitute crimes, acting as a check on "framed" trials,
and giving the public a chance to suggest changes to the
law or justice system." As with other international and
[43]

hybrid criminal tribunals where widespread public

acceptance of the legitimacy of the verdicts is crucial,
the ECCC's over-reliance on closed sessions may do long-
term damage to the court's broader goals. The
[44]

procedural rules of other courts trying the same types of

crimes, the ICTY, ICTR and the Special Court for Sierra
Leone, express a clear preference for the public nature
of hearings and pronouncement of judgment, unlike the
[45]

ECCC Draft Internal Rules. [46]

Given the value of public hearings, parts of the ECCC

Draft Internal Rules should be reconsidered in order to
ensure greater transparency to the public. First, even
though rules 83 and 108 provide a presumption of public
hearings during the trial and appeal proceedings except
where public order and victim protection might be
prejudiced, there is no such presumption during the
entire Pre-Trial phase. Rule 77 explicitly states that all
pre-trial appeal and petition hearings shall occur in
camera, while rule 18 states that hearings on
disagreements between co-investigating judges will also
be in camera, unless the disagreement related to a
decision against which a party to the proceedings would
have the right to appeal to the Pre-Trial Chamber under
the rules. In the latter situation, the chamber could still
reject the request, but no reasons are specified for why
the chamber could be allowed to deny a public hearing.
At a minimum, rule 18 should give specific instances of
when the chamber might be able to deny a public
hearing where the decision affects a party to the
proceeding.

In other rules the ECCC does not explicitly deny public

hearings, but is unclear as to whether they would be
allowed. For example, rule 7 on the recusal and
disqualification of judges and rule 66 on the provisional
detention of the accused are unclear as to whether they
are open hearings. In both instances, the ECCC should
consider unambiguously providing for a public hearing
as these are issues that are of material interest to the
public and affect the integrity of the process.

The reforms adopted by the French Parliament, Loi of 15

June 2000, exemplify the growing appreciation of the
importance of the right of the accused to a fair and
equitable criminal process within civil law systems.
Influenced by the jurisprudence of the European Court of
Human Rights, "notions of equality of arms and of open
debate are increasingly cited as guarantees of fairness
and incorporated into the various stages of criminal
procedure" within the French legal system. A key
[47]

example is the introduction of public hearings before

the chambre d'instruction at the request of the accused,
unless this threatens the security of the instruction or a
third party. As a legal system that is modeled after the
[48]

French one, the ECCC's rules should be revised to

incorporate these acknowledgements of the centrality of
public hearings to effective and legitimate criminal
justice.

Human Rights Watch believes the ECCC should revise

the aforementioned rules and provide a presumption that
hearings are public during the pre-trial phase, in the
same way as it does for the trial and appeal phases. In a
civil law system where many key decisions are decided
during the pre-trial phase it is particularly important that
the proceedings be accessible and transparent to the
public wherever possible. The exclusion of the public
should be strictly limited to the extent necessary to
protect the interests of victims and justice. The ICTY has
supported this, explicitly stating that the determination
of how the balance is struck should be made on a case-
by-case or individual basis for each witness, thus
implying that "blanket" bans on non-public hearings are
impermissible. [49]

We hope that our comments prove helpful with your

deliberations.

Richard Dicker
Director
International Justice Program

Overview of the Extraordinary Chambers in the

Courts of Cambodia (ECCC)
In 1997, the Cambodian government requested United Nations (UN) assistance in
establishing a trial to prosecute the senior leaders of the Khmer Rouge. In 2001, the
Cambodian National Assembly passed a law creating a court to try serious crimes
committed during the Khmer Rouge regime 1975-1979: the Extraordinary Chambers in
the Courts of Cambodia (ECCC) for the Prosecution of Crimes Committed during the
Period of Democratic Kampuchea. An agreement with the UN was ultimately reached in
June 2003 detailing
how the international community would assist and participate in the
Extraordinary Chambers.
A ‘hybrid’ national-international tribunal, the ECCC features both Cambodian staff and
judges together with foreign personnel. The international element was included to assist
Cambodia’s legal
system in handling these cases, which involve crimes of international
nature.

Structure of the ECCC

The hybrid nature of the ECCC is reflected in both the composition of its personnel and
the organizational structure. The ECCC is composed of both Cambodian and
international staff (judges, co-prosecutors, lawyers, etc.) to combine the local knowledge
of the Cambodian justice system with the experience of international partners in
prosecuting international crimes. The ECCC has a rather complex organizational
structure which is not unusual for international tribunals.
The ECCC is comprised of three Judicial Chambers (Pre-Trial, Trial and Supreme Court),
two Judicial Offices (Co-Investigating Judges and Co-Prosecutors) and one
Administration Office which has several sections including Defence and Victim Support
Sections.
• Judicial Chambers: The Pre-Trial Chamber deals with appeals in the pre-trial phase of
proceedings; the Trial Chamber hears the evidence, considers different sides of the case,
makes decisions, and delivers written judgments; and the Supreme Chamber is
responsible for the appeals from the trial phase.
• The Office of the Co-Investigating Judges plays a specific role in the ECCC as it has to
determine whether the facts set out by the Co-Prosecutors constitute a crime within the
jurisdiction of the ECCC and whether the charged person is to be indicted and sent to
trial before the Trial Chamber. The Co-Investigating Judges are responsible for collecting
and filing all the case material that will constitute the basis for the proceedings before
the Trial Chamber.
• The Office of the Co-Prosecutors is responsible for an independent investigation and
prosecution of the crimes under the jurisdiction of the ECCC.
• The main role of the Defense Support Section (DSS) is to ensure fair trials through
effective representation of the accused. The DSS is responsible for providing the accused
with a list of lawyers who can defend them and for giving legal and administrative
support to the assigned lawyers.
• The Civil Party Lead Co-Lawyers (CPL) represent the consolidated group of 3, 866 Civil
Parties and ensure the effective organization of Civil Party representation during the trial
stage and beyond. The Lead Co-Lawyers work with Civil Party Lawyers in the
representation of Civil Parties during the trial, and have the ultimate responsibility to the
court for the overall advocacy, strategy and in-court presentation of the interests of the
consolidated group of Civil Parties.
• Victim Support Section (VSS) plays a key role in the ECCC’s structure, because it is the
central contact point between the ECCC and victims or their representatives. The main
task of the VSS is to support and assist victims who want to exercise their right to
participate in the ECCC’s proceedings as Complainants or Civil Parties. The VSS is also
responsible for informing victims about their rights and assisting them in finding suitable
legal representation and/or Victims Associations. The VSS also provides legal and
administrative support to the Civil Party lawyers.

International criminal jurisdiction

29-10-2010 Overview
Ever since World War II, the international community has moved increasingly toward the
development of a system of international jurisdictions, complementary to that of domestic
courts, to try people accused of genocide, war crimes and crimes against humanity. Such system
is mainly two-fold: on one hand it relies on the establishment of ad hoc and other
internationalized tribunals set up after a conflict; on the other, it counts with the newly created
International Criminal Court.
In the wake of World War II, the victorious powers set up criminal tribunals in Germany and Japan to try war crimes
committed during the hostilities against civilians and allied combatants. Despite reservations about the victors taking
such an initiative, the horrific nature of the crimes committed, in particular the mass-killings of Jews and other
minorities, meant that there was wide public support for the trials.
Unlike previous wars, almost half the victims of World War II were civilians. As a result, in August 1949 the
international community also actively supported extending the scope of IHL, mainly via treaty law, to cover civilians
more effectively.
The ICRC welcomed both the development of international humanitarian law through the adoption of the four 1949
Geneva Conventions and the establishment of the obligation to exercise universal jurisdiction against grave breaches
found therein, as a means to deal with the challenge of impunity for war crimes.
Almost five decades later, the end of the Cold War and new conflicts in Europe and Africa, which caused hundreds of
thousands of civilian victims, convinced the Security Council of the United Nations to consider the necessity of
establishing ad hoc international criminal tribunals once more.
The armed conflict in the Balkans led the UN to set up an international criminal tribunal in The Hague, the
Netherlands, to try those accused of war crimes, genocide and crimes against humanity. Most famous among the
accused was the former president of Yugoslavia, Mr. Slobodan Milosevic.
Soon after, the UN also established a tribunal in Arusha, Tanzania, to punish violations of IHL and other
international crimes committed in Rwanda in the early 1990s.
Since then, special courts have also been set up to prosecute domestic and international crimes. Examples of such
mixed tribunals can be found in Kosovo, Bosnia Herzegovina, East Timor, Sierra Leone, Cambodia, and most recently
in Lebanon.
These international (and mixed) criminal tribunals may contribute to the development and clarification of
international humanitarian law and human rights law. They may strengthen respect for IHL by providing justice for
victims and may also act as a deterrent in future armed conflicts and, by establishing the truth of what happened
during a conflict, contribute to reconciliation and reconstruction.
The decision by the international community in 1998 to establish the International Criminal Court also attempted to
address these concerns, providing a means for taking up cases that States are unable or unwilling to prosecute.