Grotian Moment: The International War Crimes Trial Blog
Grotian Moment: The International War Crimes Trial Blog
Grotian Moment
Search
Case Western Reserve University School of Law
11075 East Blvd.
Cleveland, Ohio 44106

Grotian Moment Email: jcg24@case.edu
facebook linked in rss feed youtube itunes

Glossary of Key Legal Terms

Prepared by Michael Scharf

Abetted, see Aided and abetted.

Actus reus. The material or objective element of a crime, from the Latin for "guilty act." The Prosecutor must establish that the accused was responsible for the material act or actus reus that is involved in the crime, but also that the offender had knowledge of the relevant facts and intent to commit the act (known as mens rea).

Additional Protocols to the Geneva Conventions of 1977. Two treaties adopted to bring the 1949 Geneva Conventions up to date, particularly in light of post-World War II conflicts like the Vietnam War. Protocol I deals with international armed conflict, while Protocol II deals with non-international armed conflict. Serious violations of the two Protocols can be prosecuted as "violations of the laws or customs of war" under Article 3 of the ICTY Statute.

Admissibility. Refers to whether or not the Trial Chamber will allow evidence to be part of the record. Statements that are not voluntary or evidence gathered in a way that raises questions about the integrity of the proceedings is inadmissible, and will not be referred to in the Trial Chamber’s written judgment.

Adversarial system, see Common Law.

Affidavit. A written statement taken while the affiant, deponent or witness has sworn an oath to tell the truth. Strict common law rules of evidence do not allow affidavit evidence in a criminal trial as a general rule. But at Nuremberg, affidavits were widely admitted as a replacement for live testimony, a subject of much criticism. Where the content is not particularly controversial, they can be admitted before the IST.

Aggravating factors. Factors to be taken into account in sentencing that tend to lengthen a sentence. Examples include a superior or commanding position in a hierarchy, and evidence of premeditation where this is not a specific element of the crime itself. The opposite of Mitigating factors.

Aided and abetted. Also known as "complicity." An individual is responsible for a crime even if he or she does not actual commit the physical criminal act. The accomplice must either aid, by performing a material act that assists the principal perpetrator, or abet, by encouraging the perpetrator.

Amicus curiae. Literally, a "friend of the court." The IST Trial Chamber and Appeals Chamber can consider briefs produced by expert groups as amicus curiae, in addition to those of the defense and prosecution on major issues pending before the Tribunal.

Appeals Chamber. A nine-judge panel with the authority to overturn decisions of the Trial Chamber and to order an acquittal or a retrial, or to revise a sentencing judgment. It is the court of last resort, because there is no "supreme court."

Armed conflict. The resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law distinguishes between international and non-international armed conflict.

Binding Order, see Order.

Chambers. A collective reference to the judges of the tribunal. The IST is divided into several Trial Chambers and one Appeals Chamber.

Charter of the United Nations. The constitution of the United Nations organization, proclaimed on the stage of the San Francisco Opera in June 1945. Article 2(4) of the United Nations Charter prohibits use of force against another State unless (1) in self defense in response to an armed attack pursuant to Article 51 of the Charter, or (2) when authorized by a Chapter VII resolution of the Security Council.

Civil Law system, see Romano-Germanic system.

Civil Law. A commonly used expression to describe the procedural regime used in criminal trials in continental Europe and many other parts of the world, including Iraq, characterized by an inquisitorial approach rather than the adversarial framework of the common law.

Civil war, see Non-international armed conflict.

Civilian population. Crimes against humanity must consist of an attack on a "civilian population." The adjective civilian is defined broadly, and is meant to emphasize the collective nature of the crimes amounting to crimes against humanity rather than strictly the status of the victims. It covers not only civilians in a strict sense but also all persons who were no longer combatants, whether due to injury or because they were while the crimes were committed.

Closing argument. Trial takes place in two phases, the first involving the production of evidence, the second in which the two sides attempt to draw conclusions about issues of law and fact and explain the theory of their case to the judges. The Prosecutor goes first, followed by the Defense. The Prosecutor can present a rebuttal argument to which the defense may present a rejoinder.

Command responsibility. A legal technique by which a commander or superior may be convicted of crimes committed by his or her subordinates, even if the prosecution cannot prove that the commander or superior actually knew of the crimes or in some way ordered or incited them. In effect, the commander or superior is punished for providing negligent supervision of subordinates. The concept was first developed in post-World War II trials, and was later codified in Protocol Additional I to the Geneva Conventions of 1977.

Common design. This is a form of complicity where offenders have a common design, that is, they possess the same criminal intention to commit a specific act and formulate a plan to carry it out, although each co-perpetrator may play a different role within it.

Common Law. The procedural system that first developed in England and then spread to its colonies, almost all of whom kept the system with some modifications after de-colonization. The common law treats Prosecutor and Defense as adversaries who in effect duel before relatively passive judges. Each side takes strategic decisions aimed at winning its case rather than approach the trial as a forum where the truth of the allegations is to be determined in an objective sense.

Compensation. The Tribunal itself cannot order compensation to victims, but its judgments may facilitate claims for compensation by victims under Iraqi national legislation.

Competence. This term is sometimes used as a synonym for jurisdiction. It refers to the power or authority of the Tribunal to judge cases, rather than to its expertise.

Complicity. Participation in a crime for which the main physical act is committed by another. Accomplices general participate by "aiding and abetting" the commission of specific acts. But an accomplice may also be held liable for acts of other participants that are reasonably foreseeable when there is an overall plan or common design to carry out a criminal act.

Concurrent jurisdiction. War crimes, genocide and crimes against humanity can be prosecuted both by the IST and by the Iraqi national courts, but in case of conflict, the IST takes precedence under the principle of "primacy."

Concurrent sentences. If two or more convictions are registered by the Trial Chamber it may impose distinct sentences for each crime yet order that they be served concurrently, especially if they relate to the same general fact situation or criminal transaction. In practice, then, the convicted person serves the longer of the two sentences. Alternatively, the Trial Chamber may specify that the sentences be served consecutively. There is no limit in the Statute as to the length of sentences.

Conspiracy. An agreement between two or more persons to commit a crime.

Contempt. Misconduct before the Tribunal may be punished by it as "contempt." Contempt includes such acts as "contumaciously" refusing or failing to answer a question, violating Orders of the Tribunal, and tampering with witnesses.

Counsel. A defendant in proceedings before the IST has a right to counsel of choice, provided that lead counsel is a member of the Iraqi Bar.

Crimes against humanity. The concept of crime against humanity was first recognized at the Nuremberg trial. It filled a major gap in humanitarian law, which hitherto had regarded what a state did to its own population as being its own concern, in contrast with what a state did to populations of occupied territories or soldiers of another belligerent, who were already protected. Crimes against humanity consist of an underlying "ordinary crime," like murder, that is committed as part of a widespread or systematic attack on a civilian population.

Cruel treatment. A grave breach of the Geneva Convention and a violation of common article 3 of the Convention, involving infliction of severe physical or mental pain or suffering upon one or more persons.

Cumulative convictions. Although the Prosecutor is free to charge an accused with several different offences with respect to the same act, if there is a conviction, the Tribunal will only enter a finding of guilt with respect to one offence if there is sufficient overlap.

Customary international law. A source of international law derived not from written treaties but rather from unwritten rules developed over the ages. Customary law is established by proof of constant practice by states indicating the existence of a legal rule, coupled with some indication (other than the practice itself) that they consider themselves to be bound by such a rule.

Customs of war. Half of the expression "laws or customs of war." International law is an amalgam of customary law (see Customary law) and treaties. These two sources are reflected in the concept "laws or customs of war."

Decision, see Order.

Defense. The accused or the accused's counsel.

Deportation. A crime against humanity involving the forced displacement of a civilian population by expulsion or other coercive acts from the area in which it is lawfully present.

Deposition. Testimony by a witness taken out of court, sometimes by videoconference, but for use during the trial as if the witness were actually present. The Trial Chamber can authorize a deposition in cases where a witness cannot physically attend, or for other reasons deemed acceptable.

Disclosure. Prior to trial, the Prosecutor is required to disclose or make available to the Defense copies of witness statements of those who will be called to testify, copies of sworn statements, books, documents, photographs and tangible objects which are material to the defense.

Disqualification. Removal of a judge assigned to a case because the judge has a personal interest or has or has had any association which might affect his or her impartiality.

Double jeopardy, see Non bis in idem.

Due process. Ancient term of the common law referring to the right to a fair trial.

Duress. A defense invoked by the accused during trial whereby the commission of the criminal act is admitted, but it is claimed that the perpetrator had no moral choice because he or she was threatened with death or some other dire consequence.

Enslavement. A crime against humanity involving the exercise of any or all of the powers attaching to the right of ownership over a person, such as by purchasing, selling, lending or bartering such a person or persons, including the exercise of such power in the course of trafficking in persons, in particular women and children.

Equality of arms. Concept developed in human rights law whereby a fair trial requires that both sides, Prosecution and Defense, have a certain equivalence in terms of resources.

Ethnic group. One of the groups protected by the prohibition of genocide. It is similar in many respects to a national or racial group.

Expert witness. A witness who ventures an opinion about a matter that is beyond the expertise of the judges themselves.

Extermination. A crime against humanity by which a particular civilian population is targeted for death, either by killing or being otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population.

Extradition. Process by which an accused is sent from one state to another in order to stand trial.

Geneva Conventions. Four international treaties adopted in 1949 to deal with the protection of victims of armed conflict: wounded soldiers and sailors, prisoners of war and civilians. In principle applicable only to international armed conflict, each of the four conventions includes one provision, known as "Common Article 3," addressing the protection of victims of non-international armed conflict.

Genocide. The intentional destruction of a national, ethnic, racial or religious group, in whole or in part. The definition of genocide in the IST Statute is taken essentially word for word from the 1948 Convention for the Prevention and Punishment of the Crime of Genocide. It has been described by judges as the "crime of crimes" and is, arguably, the most severe of the categories of crimes within the jurisdiction of the Tribunal. Genocide is in many ways an extreme form of the crime against humanity of persecution, to which it is closely related.

Grave breaches. Grave breaches consist of particularly heinous violations of the 1949 Geneva Conventions and of Additional Protocol I. They are punishable under the IST Statute. Grave breaches can only be committed in international armed conflict. All states have an obligation to investigate grave breaches and see that their perpetrators are brought to justice, wherever the crimes have been committed.

Habeas corpus. A remedy by which a person who is detained challenges the legality of the detention. Defendants before the IST are not permitted to seek habeas relief before the national courts of Iraq.

Hague Convention. International treaty adopted in 1907 that concerns the laws or customs of war. It largely codifies important customary legal rules dealing with means and methods of war, the protection of prisoners and the rights of civilians in an occupied territory. Though not designed as a criminal law treaty, its prohibitions were taken as the basis of individual criminal responsibility by the Nuremberg Tribunal. Violations of the Hague Convention are included in the IST Statute.

Head of State or Government. Many countries grant their own heads of state or government a form of immunity from criminal prosecution, at the very least while they are still in office. However, no similar immunity was recognized at Nuremberg in the case of international prosecution. Moreover, governments can revoke a former head of state’s immunity as Chile has done with its former President, Augusto Pinochet.

Human rights law. Body of international law developed since World War II in such instruments as the Universal Declaration of Human Rights, the Convention for the Prevention and Punishment of the Crime of Genocide and the international human rights covenants. The IST may be guided by the precedents from regional human rights bodies like the European Court of Human Rights, particularly with respect to fair trial issues.

Humanitarian law. Sometimes called "international humanitarian law" or "IHL," this is the body of law that regulates armed conflict that is both international and non-international. The core of humanitarian law comprises the four Geneva Conventions of 1949, the two Additional Protocols of 1977, and the Hague Convention of 1907. Violations of humanitarian law are war crimes within the jurisdiction of the IST.

Imprisonment. A crime against humanity consisting of severe deprivation of liberty, usually involving inhumane conditions.

In camera proceedings. Proceedings that are not public.

Incitement. Incitement to commit genocide can be prosecuted by the IST even if nobody is actually incited to commit the crime. Defendants and Defense Counsel can be ordered not to make statements which would incite imminent violence.

Indictment. The indictment is prepared by the Investigative Judge and sets out the charges against the accused. It must be in sufficient detail so as to indicate the points that are at issue, and not to take the accused by surprise at trial.

Inhumane acts. A crime against humanity involving infliction of great suffering, or serious injury to body or to mental or physical health, by means of any act similar in nature to those set out in the list of crimes against humanity, such as murder, sexual violence, torture and beatings.

Inquisitorial system, see Romano-Germanic system.

Intent. It is a requirement for any criminal conviction that the prohibited act be committed with intent and knowledge, often referred to by the Latin expression mens rea or guilty mind.

Interlocutory motion. An issue contested during the proceedings, usually on procedural or evidentiary issues, and on which one of the parties seeks an immediate ruling.

Internal armed conflict, see Non-international armed conflict.

International armed conflict. Resort to armed force by two or more states. Certain violations of international humanitarian law that are within the jurisdiction of the IST can only be prosecuted if it can be shown that there was an international armed conflict.

International Court of Justice. Located in The Hague, the International Court of Justice hears cases between sovereign states.

International Criminal Court, see Rome Statute.

Internationalized Domestic Tribunal. The IST is sometimes referred to as an internationalized domestic tribunal since its statute and rules are derived from those of the international tribunals, it is independent of the domestic legal system, and it is assisted by international experts, but at the same time its judges and prosecutor are Iraqi and it sits in Baghdad.

Iraqi Special Tribunal. Known by its initials the “IST,” the Iraqi Special Tribunal was established in 2003 and approved by the democratically elected Iraqi National Assembly in 2005 to prosecute Saddam Hussein and other top figures of the former Iraqi Government for crimes against humanity, war crimes, genocide, aggression, corruption of the judiciary, and wastage of natural resources in Iraq.

Joinder. Persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried. In the first trial, Saddam Hussein is being jointly tried with seven other defendants for crimes against the inhabitants of the town of Dujail in 1982.

Joint criminal enterprise. A venture by two or more persons to effect a criminal result, in which each member is held responsible for the specific acts perpetrated by the other members of the enterprise, but only to the extent these acts were likely to lead to such an act. Where a defendant is charged with a crime committed by another participant that goes beyond the agreed object of the joint criminal enterprise, the Prosecutor must establish that the crime was a natural and foreseeable consequence of the enterprise, that the accused was aware of this when he or she agreed to participate in the enterprise.

Joint trial. A trial of two or more accused.

Judgment. Ruling by the Judges of the Trial Chamber or by a majority of them at the conclusion of the trial on the question of guilt or innocence. The final determination of an Appeal by the Appeals Chamber is also called a Judgment.

Judicial notice. As a general rule, if the judges are to take facts into account in their deliberations such facts must be proven in open court. But some facts are so notorious and well-accepted that judges may take "judicial notice" of them.

Jurisdiction. The limits that circumscribe the power of the Tribunal. See also: Subject matter jurisdiction, Personal jurisdiction, Temporal jurisdiction and Territorial jurisdiction.

Killing, see Murder.

Laws of war. Historic rules governing means and methods of warfare, and the treatment of the wounded, prisoners and civilians. Many of them date back to the age of chivalry, and they are regularly referred to in classical Greek histories as well as in the plays of Shakespeare. The first great modern codification is the Hague Convention of 1907. They were referred to as part of the expression "laws or customs of war" in article 6(b) of the Charter of the Nuremberg Tribunal.

Lawyer-client privilege. Communications between lawyer and client are privileged, and cannot be disclosed at trial without the consent of the client, unless the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.

Martens clause. So-named after its author, a Russian diplomat, who insisted that a clause be added to the preamble of the 1907 Hague Convention, recognizing that inhumane acts, even those not codified by the treaty, remain prohibited: "Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."

Material element, see Actus reus.

Mens rea. The mental or subjective element of a crime, from the Latin for "guilty mind." A guilty act (or actus reus) is only punishable as a crime if the offender had knowledge of the relevant facts or circumstances and actually intended to commit the act. But this should not be confused with motive, which is the reason why the act was committed. For most crimes, the Tribunal does not require proof of motive, although it may find such evidence to be helpful in clarifying any doubts about whether or not the accused actually committed the crime. But in the case of the crime against humanity of persecution, the Prosecutor must establish that he did this on "political, racial and religious grounds" or, in other words, for a discriminatory motive.

Military necessity. A justification for the commission of war crimes, in certain circumstances. For example, wanton destruction of cities, towns or villages, or devastation is a violation of the laws or customs of war, but only to the extent it is not justified by military necessity.

Mitigating factors. So that the punishment actually fits the crime, an accused may invoke a range of personal circumstances, including age, infirmity and mental illness in order to reduce the sentence that might otherwise be imposed.

Moot questions. A legal or factual issue that is no longer of any consequence with respect to the result of the case.

Motion to acquit. At the conclusion of the Prosecutor’s evidence, the Defense may ask the Trial Chamber for an immediate acquittal on the grounds that the Prosecutor has not even proven all of the essential elements of the charge. If the motion is dismissed, the Defense must decide whether or not to call evidence.

Motion. An application to the Tribunal that normally takes place prior to or during the trial, asking the judges to make a ruling on a specific issue. Motions may deal with the admissibility of evidence, or with a variety of procedural questions. A motion is not generally subject to appeal to the Appeals Chamber.

Motive. The reason why a crime is committed, as opposed to the intent, which is quite a distinct concept. Several people may all intend to commit a crime, but for different motives. Generally, motive is not an element to be considered in assessing guilt or innocence, although judges tend to be more easily convinced of guilt when they can understand why a person committed a crime, and equally perplexed about guilt when they see no reason why a person committed a crime. The Statute introduces a motive requirement with respect to the crime against humanity of persecution, which must be committed on "political, racial and religious grounds."

Murder. The Statute refers to both "murder" and "killing." This is for historical reasons, because the crimes defined in the Statute are derived from various texts that use slightly different terminology. But the Yugoslavia and Rwanda Tribunals have concluded that the grave breach and genocidal act of "killing," and the crime against humanity of "murder," amount to the same thing: intentional homicide.

National court. A court that is part of the ordinary Iraqi justice system. The IST is independent of the national courts of Iraq, including the Supreme Constitutional Court.

National group. A category of group protected by the prohibition of genocide. Kurds may either be a national group or an ethnic group.

Nicaragua decision. Reference to a 1985 ruling of the International Court of Justice dealing with involvement of contras backed by the United States in civil war within Nicaragua. It established a criterion of "effective control" in determining whether acts of armed bands acting within a country could be imputed to a foreign power. In a case dealing with the level of control that the Federal Republic of Yugoslavia exercised over Bosnian Serb forces, the Appeals Chamber of the Yugoslavia Tribunal ruled that Nicaragua set too narrow a standard, and that the better test was "overall control."

Non bis in idem. Latin expression for what is known in the common law as "double jeopardy." An accused cannot be tried by a national court if he or she has already been tried by the Tribunal. This also works in the other direction, but subject to important exceptions, such as sham trials held to shield someone from international prosecution.

Non-governmental organizations. The IST has received assistance and training by several NGOs including the International Bar Association based in London, the International Legal Assistance Consortium based in Stockholm, the International Association of Penal Law based in Paris and Siracusa Sicily, and the Public International Law and Policy Group based in DC and Cleveland. Other NGOs, such as Human Rights Watch, are participating as trial observers during the IST proceedings.

Non-international armed conflict. In popular parlance, a civil war. But international humanitarian law takes care to distinguish between non-international armed conflict and situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. There may also be a requirement that there be evidence of protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. Serious violations of the laws or customs of war committed during non-international armed conflict include violations of Common Article 3 of the Geneva Conventions, as well as some serious violations of Additional Protocol II. They are punishable under the IST Statute. A non-international armed conflict may become "internationalized" if another State intervenes in that conflict through its troops, or alternatively if some of the participants in the internal armed conflict act on behalf of that other State.

Notice of appeal. Written declaration, followed after Judgment, indicating a party’s intent to appeal.

Nullum crimen sine lege. Latin for, literally, "no crime without law." This is the prohibition of retroactive crimes.

Office of the Prosecutor. The organ within the IST that is responsible for preparing prosecutions and presenting them to the Tribunal at trial.

Official position. Official position is not a defense. In the past, tyrants alleged that they were merely acting on behalf of a state, and that they could not be held responsible individually for criminal offenses. The Pinochet judgment of the English House of Lords rejects this view, and it is set out clearly in the Statute of the IST, which says official position "shall not relieve such person of criminal responsibility nor mitigate punishment."

Opening statements. Before presentation of evidence by the Prosecutor, each party may make an opening statement. The defense may, however, elect to make its statement after the conclusion of the Prosecutor's presentation of evidence and before the presentation of evidence for the defense.

Order. A ruling by a Judge or a Trial Chamber that relates to the preparation of the trial, transfer of suspects, protection of witnesses and other trial participants, televising the proceedings, and similar matters.

Pardon. An executive act that cancels a conviction and leads to the release of the convict.

Persecution. A crime against humanity consisting of the deprivation of fundamental rights, and are acts that are not inherently criminal but that may nonetheless become criminal and persecutorial if committed on political, racial and religious grounds.

Personal jurisdiction. The IST only has personal jurisdiction over persons of Iraqi nationality.

Plunder. Archaic term used to describe appropriation of property by force during armed conflict.

Precedent. A previous decision of a court that resolves a legal issue. The IST Statute provides that the Tribunal will be guided by the precedent of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. Judgments of post-World War II war crimes tribunals, international judicial bodies like the International Court of Justice and the European Court of Human Rights, and even rulings of national courts, may also be invoked by the judges of the IST as they interpret the Statute.

Preliminary motion. An application to the Tribunal by one of the parties made prior to the trial itself in order to resolve issues that affect the future proceedings, such as the joinder of defendants, or details about the indictment.

Presiding judge. Each of the Trial Chambers elects a Presiding Judge who directs the proceedings.

Prima facie. Latin expression indicating that there is sufficiently credible evidence to sustain a conviction if not contradicted by the accused. During the trial, if the Defense makes a motion to acquit at the end of the Prosecution's evidence, the Trial Chamber must grant the motion if the Prosecution has not made out a prima facie case.

Primacy, see Concurrent jurisdiction.

Prisoner of war. A prisoner of war is a captured enemy combatant who wears a distinctive sign, carries arms openly and does not violate the laws or customs of war. Prisoner of war status is presumed upon capture, but may be contested before a court. Prisoners of war status is regulated by the third Geneva Convention of 1949.

Proprio motu. Latin for "on its own initiative." In an adversarial system, like that of the common law countries, the initiative is left to the Prosecution and to the Defense. But in the IST, the judges may intervene proprio motu even where the Defense and the Prosecutor are silent. For example, the Trial Chamber may, on its own initiative, issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.

Prosecutor, see Office of the Prosecutor.

Protected person. Categories of persons protected by the Geneva Conventions, namely former combatants who can no longer fight because they are wounded or taken prisoner, and civilians. Grave breaches of the Geneva Conventions, other serious violations of the Geneva Conventions, and violations of Common Article 3 to the Geneva Conventions must be committed against such protected persons.

Protocols Additional, see Additional Protocols

Racial group. Archaic term used to describe what we now know as "ethnic groups." One of the four groups protected by the prohibition of genocide.

Rape. Several of the crimes within the jurisdiction of the IST can be committed by the underlying act of rape. There is no international definition of rape, so the Tribunal has attempted to distill the various definitions from national legal system. It considers that rape involves non-consensual sexual penetration of the vagina or anus of the victim by the penis of the perpetrator or any other object; or sexual penetration of the mouth of the victim by the penis of the perpetrator. The offender must intend to effect the sexual penetration and know that it occurs without the consent of the victim.

Rebuttal. When the Defense has closed its case, the Prosecutor is entitled to rebut the case by introducing a limited amount of new evidence in order to rebut new matters that arose from the Defense evidence and that it could not reasonably have anticipated.

Record on appeal. The appeal is not a new trial and as a general rule it does not consider evidence that was not initially presented to the Trial Chamber during the trial. The Appeals Chamber bases its decision exclusively on the "Record on appeal," consisting of transcripts of the testimony at the trial, documents and other material evidence entered in evidence, and the various written proceedings of the court file.

Recusal, see Disqualification.

Rejoinder. Prosecution evidence that is introduced in "Rebuttal," that is, to answer the Defense case, may itself be contested by the Defense with the production of "Rejoinder" evidence.

Religious group. A group protected by the prohibition of genocide. Intentional destruction of a religious groups is a form of genocide. The category was included in the prohibition to ensure that disputes as to whether Jews or Muslims, for example, were not an ethnic but rather a religious group would not provide a loophole for defendants.

Romano-Germanic system. A system of criminal procedure widely used in continental Europe and other parts of the world, including Iraq, sometimes also called the "civil law system" or the "inquisitorial system." Unlike the "common law system," where this is done by prosecution and defense lawyers, it is a judge (known as the investigating or instructing magistrate) who prepares the case for trial.

Rome Statute. The treaty that creates the International Criminal Court. Adopted by a diplomatic conference in July 1998, it came into force in mid-2002. Much like the IST, the Court can prosecute genocide, crimes against humanity and war crimes. It has jurisdiction over crimes committed on the territory of countries that have ratified the Rome Statute, or by their nationals. Iraq has not ratified the Rome Statute. But the United Kingdom has, and complaints have been filed before the ICC about war crimes allegedly committed by UK personnel in Iraq during the 2003 invasion. Because the UK has prosecuted such cases domestically, the complementarity principle prevents the ICC from pursuing the matter further.

Rules of Procedure and Evidence. Detailed rules guiding the operation of the Tribunal. They were approved, along with the IST Statute, by the Iraqi National Assembly on August 11, 2005. The Rules are to be supplemented by the Iraqi Criminal Code, but in cases of conflict, the IST Rules prevail.

Sentence. If the Tribunal decides to convict, it can impose an appropriate sentence, ranging from a term of years, life imprisonment, or capital punishment. Any evidence or arguments that the Defense wishes to submit in order to mitigate sentence must be produced during the trial itself, before the Trial Chamber has ruled on the issue of guilt.

Severance. Where an indictment deals with two or more accused persons, it may be necessary to "sever" the cases of specific defendants in order to ensure a fair trial. Severance may also occur if an indictment deals with two or more quite separate and distinct fact situations, with no obvious relationship between them.

Statute. The legal basis for the operations of the IST. It was first promulgated by the CPA on December 10, 2003, and later re-promulgated with revisions by the Iraqi National Assembly on August 11, 2005.

Subject matter jurisdiction. The crimes which the ICTY is empowered to try, namely, grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, crimes against humanity, aggression against an Arab country, corruption of the judiciary, and wastage of natural resources. In legal Latin, ratione materiae jurisdiction.

Subordinate, see Command responsibility.

Subpoena. An order issued by a Judge or a Trial Chamber directing a person to testify in person or to produce a document that is under their control.

Superior orders. A classic defense in war crimes trials, in which the obedient soldier admits committing a war crime but says "I was only following orders." Even in post-World War II trials, superior orders was rejected as a defense in cases where the order was manifestly unlawful. To avoid any debate on this point, the IST Statute simply prohibits the defense. But the Tribunal can take the issue into account in mitigation of punishment.

Suspect. A person concerning whom the Prosecutor possesses reliable information which tends to show that the person may have committed a crime over which the Tribunal has jurisdiction.

Temporal jurisdiction. The Tribunal can only punish crimes committed within its temporal jurisdiction, that is, from 1968 to 2003. In legal Latin, this is ratione temporis jurisdiction.

Territorial jurisdiction. The IST can punish crimes committed within the Territory of Iraq or within neighboring States, such as Iran or Kuwait. In this way, it’s jurisdiction is more expansive than the Yugoslavia Tribunal or the Rwanda Tribunal.

Torture. Torture can be prosecuted as a grave breach of the Geneva conventions, a serious violation of the laws or customs of war, or a crime against humanity. It consists of the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused. Torture must be conducted for a prohibited purpose, such as obtaining information or a confession, punishing, intimidating, humiliating, or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person.

Transaction. A number of acts or omissions whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan.

Trial brief. In other war crimes tribunals, such as the Yugoslavia Tribunal and Rwanda Tribunal, both Prosecutor and Defense are required to set out their legal and factual arguments in writing. First, they must submit a "Pre-trial brief," outlining the factual and legal issues, including a written statement setting out "the nature of his or her case." Then, after the evidence has been presented, both sides are also expected to present a "trial brief" prior to making their closing arguments.

Trial Chamber. Five judges of the Tribunal, led by a Presiding Judge, who actually hear the case and rule on guilt and innocence. The Trial Chamber also has some responsibilities over pre-trial matters.

Tu quoque. Latin for “you too,” tu quoque is an argument used in war crimes trials in which the defense argues that “since you have committed the same crime, you cannot legitimately prosecute me.” The tu quoque argument was rejected as an illegitimate defense by the Nuremberg Tribunal and by the Yugoslavia Tribunal.

Universal jurisdiction. As a general rule, national courts only prosecute crimes committed on their territory or by their nationals. But for certain serious crimes, of which war crimes, genocide and crimes against humanity are the best examples, it is well recognized that any state may prosecute anyone, no matter where the crime was committed.

War crimes. This general expression refers to grave breaches of the Geneva conventions and other serious violations of the laws and customs of war. In 1995 the Yugoslavia Triabunal’s Appeals Chamber ruled that war crimes could be committed in non-international armed conflict as well as in international armed conflict, a principle that was later codified in the Rome Statute.

Wilful blindness. Where it is established that a defendant suspected that a fact existed, or was aware that its existence was highly probable, but refrained from finding out whether it did exist because so as to be able to deny knowledge, this is deemed to be equivalent to real knowledge for the purpose of establishing the mental element or mens rea of the offence.
Breaking News & Analysis
No postings

VIEW THE FULL ARCHIVE