International Justice Monitor

A project of the Open Society Justice Initiative

Glossary of Legal Terms

Amnesty

Amnesty is a mechanism to excuse from criminal responsibility the perpetrators of a crime, generally before prosecution. International law prohibits the applicability of amnesties or similar mechanisms to exonerate alleged perpetrators of crimes against humanity (including genocide), gross human rights violations or international crimes from criminal responsibility, or to excuse the state’s responsibility to investigate or prosecute those responsible. National laws cannot override a state’s obligations under international law to prosecute international crimes. The Rome Statute also does not recognize amnesty for crimes within the International Criminal Court’s (ICC’s) jurisdiction.

Closed Sessions

This means that the media and public are banned from court for all or part of a particular witness’s testimony. In international criminal tribunals, for some witnesses, if their testimonies about particular issues will disclose their identity and thus expose them to security risk, their testimonies will be heard in closed or private sessions.

Command or Superior Responsibility

Under the principle of command or superior responsibility, individuals in superior positions who do not prevent or punish subordinates from committing international crimes may be held individually criminally responsible. Command or superior responsibility is outlined in Article 7(3) of the Statute of the International Criminal Tribunal of Yugoslavia, Article 6(3) of the Statute of the International Criminal Tribunal of Rwanda, and Article 28 of the Rome Statute of the International Criminal Court. Key elements of command or superior responsibility are the omission by the accused to prevent crimes committed by subordinates, or the failure to punish the perpetrators; and the standard that the accused either knew or should have known about the crimes.

Crime against Humanity

Pursuant to the Rome Statute of the International Criminal Court, a crime 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:

  1. Murder;
  2. Extermination;
  3. Enslavement;
  4. Deportation or forcible transfer of population;
  5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
  6. Torture;
  7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
  8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, 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 within the jurisdiction of the Court;
  9. Enforced disappearance of persons;
  10. The crime of apartheid;
  11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

Crimes against humanity must possess three major elements:

  • The crime must be a product of a widespread or systematic attack, not an isolated incident. If it is isolated, it must be connected to multiple acts, pursuant to a policy.
  • Such crimes must be directed against a civilian population – if it is a military target, it cannot be a crime against humanity. But the act could still be a war crime.
  • The alleged perpetrator must have knowledge of the attack.

Equality of arms

According to the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the case of Prosecutor v. Tadic (July 15, 1999 para. 43, 44, 48, 52): “equality of arms is an expression that means that each party must have a reasonable opportunity to defend its interests under conditions which do not place him at a substantial disadvantage vis-a-avis his opponent…this principle means that the Prosecution and the Defense must be equal before the Trial Chamber. It follows that the Chamber shall provide every practical facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.”

Expert Witness

An expert witness is a person whose education, training, and experience can provide the court with an assessment, opinion, or judgment within the area of his or her competence.  This knowledge is usually not known or available to the general public. The person must be accepted by the court and must normally testify about facts rather than the law. The defense has the right to object to the qualification of an individual presented by the prosecution as an expert witness.

Fair Trial

A judicial proceeding that is conducted in such a manner as to conform to fundamental concepts of equality and justice. Article 14 of the International Covenant on Civil and Political Rights (ICCPR) concerns the right to equality before courts and tribunal and to a fair trial. It provides for:

  1. Equality before the courts, including a “fair and public hearing by a competent, independent and impartial tribunal established by law;
  2. The right to the presumption of innocence;
  3. The minimum guarantees of:
    1. Access to a prompt and detailed account of the nature and charges against the accused;
    2. “Adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”;
    3. Trial “without undue delay”;
    4. The right to be present and present a defense, with access to counsel;
    5. The right “to examine, or have examined, the witnesses against him and to obtain the attendance    and examination of witnesses on his behalf under the same conditions as witnesses against him”;
    6. The right to an interpreter if necessary; and
    7. The right “not to be compelled to testify against himself or to confess guilt”;
  4. Appropriate procedures for juveniles;
  5. The right to appeal;
  6. Compensation in most circumstances for a false conviction; and
  7. The prohibition of double jeopardy.

In its 2007 General Comment on Article 14, the UN Human Rights Committee issued an interpretation of the fair trial rights enshrined in the ICCPR. The Committee is the body authorized to make binding interpretative judgments concerning the ICCPR and to review its implementation.

Genocide

The Genocide Convention of 1948 identifies genocide as a crime under international criminal law, and obliges state parties to the Convention to prevent and punish the crime of genocide.

The Convention defines genocide as: “any of the following acts committed with the intent to destroy, in whole or part, a national, ethnical, racial or religious 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 part;
  4. imposing measures intended to prevent births within the group;
  5. forcibly transferring children of the group to another group.”

Intent

The intent is the mental element of the crime. It can be proven directly from statements or orders; or inferred from a systematic pattern.

The international crime of genocide requires that the alleged perpetrator have the “intent to destroy, in whole or part, a national, ethnical, racial or religious group.” Intent is not the same as motive; a motive of national security, for instance, does not negate the possibility of genocidal intent. Further, genocidal intent does not require the intent to destroy a whole group.

Gravity

The Rome Statute states that a case is not admissible at the International Criminal Court if it “is not of sufficient gravity to justify further action by the Court” (Article 17(1)(d)). The Statute makes this requirement to ensure that the ICC focuses its limited resources on situations and cases around the world where the worst crimes are committed. However, the Statute does not define “gravity,” and ICC judges have to interpret it.

Hearsay Evidence

Statements offered by a witness, based upon what someone else has told him/her and not upon personal knowledge or observation. This is a secondary source of evidence rather than a primary source. For a primary source of evidence, the witness actually saw an event happen or such events happened directly to him/her. Courts will generally rely more on primary evidence than on secondary evidence. In common law systems, there is general rule excluding hearsay evidence, however, in international criminal tribunals, the judges will look at the relevance and probative value of the evidence, focusing on its reliability before admitting as evidence. In doing so, judges will consider the circumstances under which the evidence arose and the content of the said statement in evidence. If the hearsay evidence is relevant and reliable therefore, it will be admitted in evidence by the judges. Under the Rome Statute, there is no general rule excluding hearsay evidence, and to be admissible, Article 69(3) only requires that the evidence by relevant and necessary.

Individual Criminal Responsibility

The concept of individual criminal responsibility means that a person will be found guilty for committing crimes if the “person planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime.” Each international criminal tribunal has incorporated the concept of individual criminal responsibility into their statutes. At the ICC, Article 25 of the Rome Statute states that an individual is responsible for the commission of crimes if a person commits, orders, solicits, induce, aids, assists in the commission of a crime, provide means or contributes to the commission of the crime. Further, the accused must intend to engage in the conduct or the accused is aware of the consequences that will result in the regular course of events.

Joinder

Joinder is the union of two or more cases to be heard in one trial. Cases may be joined when the issues or parties involved are sufficiently connected to make the process more efficient or more fair (e.g. if defendants are alleged to have committed the same crime, so that courts do not have to hear the same evidence presented twice). Article 64(5) of the Rome Statute of the International Criminal Court establishes that “upon notice to the parties, the Trial Chamber may, as appropriate, direct that there be joinder or severance in respect of charges against more than one accused.”

Joint Criminal Enterprise (JCE)

Joint Criminal Enterprise is a mode of liability, which assigns individual criminal responsibility to all individuals who together have been part of a common plan, design, or purpose which amounts to or involves the commission of a crime. The Joint Criminal Enterprise mode of liability was created by the judges at the International Criminal Tribunal for the Former Yugoslavia and was utilized by all other international tribunals. The ICC adopted a different form of joint criminal enterprise. Article 25(d) of the Rome Statute provides that an accused contributes to the commission of a crime with a common purpose by furthering the criminal activity or having the knowledge that the group intends to commit a crime. The accused then can be found guilty as a co-perpetrator or an indirect perpetrator.

Other Serious Violations of International Humanitarian Law

Others serious violations of international humanitarian law refer to crimes committed during international and non-international armed conflict. These crimes, though not found in any treaty, are regarded as being part of customary international law. Following crimes are examples of other serious violations of international humanitarian law: making a civilian population that does not participate in the hostilities the object of the attack; launching an attack knowing there would civilian casualties; or attacking facilities designated as non-military targets.

Proprio Motu

This term refers to powers granted to the ICC Prosecutor under Article 15 (3) of the Rome Statute, which enable him to initiate an investigation at his own instigation, without a referral from a State Party or the UN Security Council.

Protective Measures for Witnesses

Measures to prevent disclosure of the identity or whereabouts of a victim or witness by:

  • Blacking out names;
  • Refusing disclosure to public of records/name;
  • Testifying through image and voice altering devices, closed circuit television, or video link;
  • Assignment of a pseudonym; and
  • The use of closed or private session.

Article 68(1) of the Rome Statute of the ICC sets out the court’s general responsibilities on witness protection: namely to “take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.”

Summons

A legal document issued to a defendant containing the counts against him or her and announcing a date that he or she must appear before the court. The summons obliges the individual to appear before the court, but does not impose any obligation on any other party (e.g. the state authorities) to arrest and transfer him or her to the court. It does not automatically lead to the detention of the defendant, though restrictions may be placed on his or her liberty by the pre-trial chamber.

Warrant of arrest

A legal document authorizing the arrest and detention of an individual by the authorities. A warrant of arrest would be issued instead of a summons in cases where a summons was not considered sufficient to ensure that the individual would appear before the court on the date set (e.g. that he or she would be likely to evade the court). A warrant of arrest from the International Criminal Court would oblige all states parties to comply with the court by arresting the indicted individual and transferring him or her to the custody of the court.

War Crimes

While wars are chaotic and brutal, there is a body of international law that tries to regulate the violence in armed conflict. These rules are not meant judge why conflicts are fought, but rather, they lay the ground rules about how parties to the conflict should conduct themselves and what acts are not allowed during the conflict. Specifically, these laws aims to safeguard “protected persons”—those who are not, or are no longer, involved in the conflict. Protected persons include civilians (children and women are considered particularly vulnerable), ill soldiers, and prisoners of war.  At the International Criminal Court, war crimes are listed in Article 8(2) of the Rome Statute. They include such crimes as murder, terrorism, sexual violence, cruel treatment, and pillage.