On 18 December 2013, the Democratic Republic of Timor-Leste initiated proceedings before the International Court of Justice (ICJ) against the Commonwealth of Australia alleging that the latter violated diplomatic immunity in entering the former’s embassy without permission. More information on these events can be found here.
On 22 November 2013 the International Tribunal for the Law of the Sea (ITLOS) issued provisional measures ordering the Russian Federation to release the Dutch vessel the Artic Sunrise and her crew from detention and allow them to leave the country. The dispute is about Russian jurisdiction to arrest the vessel (in a technical sense) and prosecute her crew for crimes they allegedly committed. The issue at the heart of the dispute is whether or not Russia violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by taking the vessel and her crew into custody while they were in the exclusive economic zone without first asking the Netherlands government for permission to board.
ITLOS ordered the provisional measures because it accepted that the failure to comply with such an order would irreparably harm the Netherlands’ interests pending resolution of the dispute between the two countries. The interests considered by the tribunal being the condition of the vessel and the crew’s liberty interests, both of which being harmed by their detention. As a guarantee pending the resolution of the international dispute (and to guarantee payment of any damages to Russia) the tribunal ordered that the Netherlands take out a bond of 3.6 million.
Russia, for its part, has stated that it will ignore the order for provisional measures, as it does not accept that jurisdiction of the tribunal. In fact, Russia did not participate in the hearing on the Dutch request for the tribunal to intervene.
What makes the issue so interesting is that it appears to conflate the issue of a potential infraction of an international obligation (such as the arrest of the vessel) that is capable of being resolved by the payment of money (economic loss) and the enforcement of national criminal laws (against the crew for their alleged crimes). These two issues are of a type different, one is inherently “civil” in nature while the other has to do with public order. A bond, such as that ordered by the tribunal, can work to guarantee compensation for Russia should the Netherlands lose the suit and be forced to pay – which is the purpose of seizing the boat in the first place. The same cannot be said for the release of the vessel’s crew.
The enforcement of criminal law is not about money (or at least it should not be). The idea behind penal sanction is that punishment will not only deter the culprit from violating the law a second time, but the existence of punishment will deter others from committing crimes in the first place. If the crew of the Artic Sunrise are guilty of crimes under the Russian penal code, their release will effectively prevent their punishment and thereby undermine the effectiveness of Russian criminal justice. Even assuming, however, that these considerations are not relevant, that would still not mean Russia would lack the legal ability to try the crew of the Artic Sunrise because the vessel was seized in violation of UNCLOS.
There is an internationally recognized principle that those who break the law may be tried even if their initial arrest was made in contravention of the law, known as the male captus, bene detentus rule. This rule has been explicitly accepted as a matter of International Criminal Law, and has been applied by States to justify national prosecutions. Some countries object to the validity of this rule of law and choose, as a matter of national law to prevent trial after illegal arrest. No rule of generally applicable customary international law requires such a result.
ITLOS did not address the issues of the enforcement of criminal law or male captus, bene detentus. The basis for its issuing the precautionary measures vis-à-vis the crew of the Artic Sunrise is not clear. It would have been great benefit had the tribunal decided to explain its decision, unfortunately, it did not.
In the end, Russia should comply with the order to release the Artic Sunrise and accept the bond on this matter. This is the correct legal result and it could be good as a political bargaining chip. When it comes to the custody of the crew, however, I cannot say that Russia is entirely in the wrong, at least as a matter of international law on the exercise of criminal jurisdiction.
Yesterday, 25 November 2013, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) released its annual report on preliminary investigations. This document sets out what actions were taken by the OTP in the consideration of potential situations that have been brought to the attention of the office. The report sets out the state of the examinations, whether the OTP believes there is jurisdiction, reasonable basis to believe crimes have been committed, whether there is an admissibility issue and whether the crimes are serious enough to be tried by the ICC.
10 potential situations were under examination by the OTP during this reporting period. They were:
Afghanistan – relating to the non-international armed conflict in that country;
Honduras – allegations of crimes committed following the ouster of former President Zelaya in 2009;
The Mavi Marmara Incident – relating to the Gaza Freedom Flotilla;
Republic of Korea – relating to alleged attacks by North Korea;
Colombia – relating to the drug war;
Georgia – relating to the 2008 war with Russia;
Guinea – relating to the 28 September Massacre;
Nigeria – relating to Boko Haram;
Mali – relating to the recent violence in that country; and
Palestine – relating to crimes allegedly committed during Israel’s occupation.
Of these potential situations, 3 are in Africa, 2 are in Asia, 2 are in Latin America, 1 involves the States of the former Soviet Union and 2 derive from the Israeli/Palestinian conflict. The only situation to progress to the opening of official investigations, Mali, is from Africa.
All the preliminary examinations are still pending except for Mali (as noted an investigation was opened) and Palestine, where the OTP stood by an earlier decision about the invalidity of the referral. However, the OTP indicated a road that may lead to a different determination in the future.
Of the preliminary examinations, four of them included interesting pronouncements of law by the OTP: Honduras, Mavi Marmara, Korea and Palestine. I would like to address each briefly, in turn.
In 2009, then president of the Republic of Honduras was arrested and removed from the country by members of the armed forces. This event triggered large-scale protests and allegations of severe human rights abuses against protestors by the newly installed authorities. Information was sent to the OTP alleging that these violations amounted to Crimes Against Humanity (CAH). In the end the OTP determined – at least at this stage – that the reported violations of Human Rights Law while severe, there was insufficient grounds to believe that they were CAH due to the apparent lack of a governmental plan or policy to commit them and/or nexus with that plan should it exist.
The most interesting part of this document is that it takes for granted that the removal of Zelaya was a coup. I have written about these events before, and it seems to me that the issue has not been analyzed enough. In any case, the characterization of the events is not relevant to the determination of whether crimes within the jurisdiction of the court were in fact committed.
The Mavi Marmara incident relates to the “Gaza Freedom Flotilla” and the Israeli raid that prevented it from reach Gaza. The OTP underwent an analysis very similar to that in a prior post on this blog. So far, review has only been conducted as to the jurisdiction of the court. The next step is for the OTP to determine whether there are reasonable grounds to believe crimes within that jurisdiction have been committed. Then it will be necessary to determine if the cases are admissible.
This decision is notable for its direct application of the rule that a ship is a “floating territory” of the flag State, and therefore sufficient for founding the court’s jurisdiction.
The OTP determined that there is jurisdiction over alleged crimes committed by the North Korean military in South Korea (a shelling incident and an attack on a military vessel). The next step in the process is to determine whether there are grounds to believe specific crimes were committed.
The interesting part of this decision is that jurisdiction is based on the simple fact that the specific incidents in question were uses of military force between States. The OTP found that the simple recourse to the use of armed force between States, even if not in a continual fashion, is sufficient to create an international armed conflict. This reading of the law is not out of line with international pronouncements on the nature of international armed conflict. However, it does beg reason to say that a single incident of military to military force is enough give rise to an international armed conflict. Border incidents, for example, have long been recognized as not meeting the threshold of the beginning of an armed conflict. I do not mean to say that the events in question are insufficient, only that the OTP analysis leaves much to be desired.
In 2012 the OTP announced that it would not initiate an investigation in to allegations of crimes in Palestine as there was no consensus that Palestine was a State capable of granting the court jurisdiction. Since that decision, Palestine has been recognized as a non-member Observer State at the UN, that is, it has been recognized as a State by the General Assembly. However, the OTP found that since the “referral” was made in 2009, before Palestine was recognized by the General Assembly, it could not grant the court jurisdiction. The implicit logic leads one to believe that the OTP would accept a new referral from Palestine as being valid.
This is perhaps the most interesting decision in the whole OTP annual report. If I have interpreted it correctly, and the authorities in Palestine so choose, we could see the ICC with jurisdiction (at least in the view of the OTP) over alleged crimes in the occupied territories. If there have been accusations that the ICC has been politicized in the past, they will be nothing compared to what is said if the court finds it has jurisdiction. The political arena in the Middle East may be getting ready for an earthquake.
Yesterday, the ICC announced four arrest warrants have been issued on contempt charges arising out of the case against Jean-Pier Bemba Gombo. The charges are against Bemba himself, his attorney, a member of the DRC parliament and another member of his defense team. Alleged crimes include presenting false evidence and witness tampering.
The press release is available here.
As many know the United Nations ad hoc international criminal tribunals that were created in the 1990’s to prosecute international crimes committed during the Yugoslav wars and the Rwandan genocide are scheduled to complete their work in the near future. However, the judicial work of the tribunals is not finished just because the courts have completed the task of adjudicating allegations of international crimes. There will still be outstanding protective measures for victims and witnesses that will need enforcing. At the same time, it will be necessary for a forum to exist to authorize the publication of information from the trials (confidential exhibits) and the modification of the above-mentioned protective measures. Judges will need to sworn and authorized to rule on these issues and enforce them where necessary. For this reason, the United Nations created the Residual Mechanism on 22 December 2010 and judges were sworn thereafter to hear issues that arise in the future.
The scope of the Residual Mechanism’s jurisdiction on work has already been the subject of argument and decision at the International Criminal Tribunal for the former Yugoslavia (ICTY). On 27 September 2013, Radovan Karadžić (on trial before the tribunal) filed a request with the Tribunal’s president, Judge Theodor Meron, for a special chamber to be formed to consider to appointment of a special prosecutor to investigate the filing of contempt charges against former prosecutor Carla Del Ponte.
The special chamber, consisting of Judges Flügge, Moloto and Hall, noted that the Residual Mechanism’s statute provides that it has jurisdiction over “any person who knowingly and wilfully (sic) interferes or has interfered with the administration of Justice by the Mechanism or the Tribunals, and to hold such person in contempt.” They also noted that according to the transitional arrangements, the Mechanism is the proper forum for contempt proceedings where the indictment is confirmed after the effective date of the mechanism. Considering that The Hague branch of the mechanism is already active, the chamber held that the Mechanism, and not the ICTY, has jurisdiction to entertain the issue of the appointment of a special prosecutor.
This decision is problematic for several reasons, some legal and some based merely in common sense. I shall turn to the latter first.
Common sense dictates that Karadžić’s motion be filed with the appropriate person, whether that be the president of the ICTY or that of the Mechanism. However, in this specific case, Judge Meron is both the president of the ICTY and the Mechanism. Furthermore, the current Registrar of the ICTY also holds the same position at the Mechanism. The proper person received the request and assuming for the moment that the special chamber is correct – and the Mechanism is the proper forum – it should have been within the purview of the Judge Meron to sua sponte correct that error. He did not consider that there was an error and so the matter should have been considered as already decided. Alternatively, as president of the Mechanism, Judge Meron’s choice to appoint those currently sitting international judges to consider the issue should have been valid, especially considering that all the judges on the panel are also serving judges of the residual mechanism. The decision as written does nothing more than unnecessarily prolong the matter by passing the buck back and forth based on a presumed procedural anomaly.
From a legal point of view, the reasons for the special chamber’s decision also show that it is not necessarily correct. It is true that the Mechanism is to have jurisdiction to try those who are on trial for contempt of the tribunal based on indictments confirmed after the start date of the Mechanism. However, no indictment has yet been issued so that the Mechanism does not yet have the competence to hear the issue – outside of independently considering the issuance of an indictment itself.
Furthermore, and here assuming that the Mechanism would have jurisdiction to consider the issuing of a contempt indictment at this point, the jurisdiction of this institution does not itself preclude the jurisdiction of the ICTY to issue the indictment that will result in a trial before the Mechanism. The ICTY is just prevented from carrying out the contempt trial. This could simply be a case of concurrent jurisdiction on the matter. It is proper that the tribunal whose orders were allegedly violated is a better forum to consider the issuance of an indictment for contempt – especially when such power is not statutory but an inherent component of the judicial function.
This, however, is not the understanding of the Mechanism itself. Both the appeals chamber and a single judge have ruled that the Mechanism has the sole authority to consider accusations of contempt before the two ad hoc tribunals. These decisions effectively subtracted from the tribunals the ability to enforce their decisions and order and for reasons not required by the text of the statute and rules.
Given the legal and common sense possibilities of considering the issue of an indictment at the ICTY, there was no reason for the special chamber to decline jurisdiction. By deciding not to decide the substantive issue, the judges of the chamber have done nothing more than delay the issue.
 When the tribunals close, the ICTY will no longer have any outstanding indictments. This is not so of the ICTR.
 Cite to UNSC Res. 1966 (2010).
 ICTY, Prosecutor v. Karadžić, Decision on Jurisdiction Following the Assignment of a Specially Appointed Chamber, IT-95-5/18-T, IT-02-54-T, p. 2 (18 October 2013).
 Ibid. citing, article 1(4)(a) of the Statute of the Residual Mechanism.
 See, Article 4(2) of the transitional provisions annexed to the statute of the Residual Mechanism.
 In re. Deogratias Sebureze & Maximmilien Turinabo, MICT-13-40-A R90 & MICT-13-41-AR90, Decision on Deogratias Sebureze and Miximilien Turinabo’s Motions on the Legal Effect of the Contempt Decision and Order Issued by the ICTR Trial Chamber (20 March 2013) and its subsequent tacit approval on appeal.
This is the first time that charges of contempt – or interfering in the administration of justice – have been brought at the ICC. It will be interesting to see how much (if at all) the Court decides to follow the case law of the ad hoc Tribunals.
Also, given the current relationship between Kenya and the Court, it will be interesting to see if and to what extent Kenya will cooperate with the Court.
On 21 September 2013, a group of armed individuals entered the Westgate mall in Nairobi, Kenya and began what would become a three-day hostage stand-off and shootout with the authorities. At most recent count, the death toll is 72 with over 200 hundred injured. The perpetrators have been identified as being associated with Al-Shabaab, an Islamist group that controls large swaths of southern Somalia. Kenya’s President, Uhuru Kenyatta, announced three days of national mourning and vowed that the perpetrators would face justice.
On 24 September 2013, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, issued a press release which read,
The Prosecutor of the International Criminal Court, Fatou Bensouda, expresses her deep sympathy to the victims of the appalling attack on the Westgate Mall in Nairobi and to their families and the people of the Republic of Kenya. She prays that the hostages held in the mall have been safely delivered and for a swift end to this dire situation.
Such attacks by armed groups upon innocent civilians are contrary to international law and may constitute a crime under the Rome Statute, to which Kenya is a State Party. In expressing her solidarity with the victims, their families and the people of Kenya, and with full respect for the primacy of jurisdiction of the Republic of Kenya, the Prosecutor stands ready to work with the international community and the Government of Kenya to ensure that those responsible for these crimes are brought to justice.
This press release sets out the possibility of classifying the tragedy which took place at the Westgate mall as an international crime by stating that “[s]uch attacks by armed groups upon innocent civilians are contrary to international law.” She then goes on to say that these are crimes within the jurisdiction of the ICC. The court has jurisdiction over war crimes, crimes against humanity and genocide. Therefore, in order for the ICC to have jurisdiction over crimes committed at the Westgate mall, they will have to fall into at least one of these three categories.
Each category of international crimes has its own detailed doctrines and elements that distinguish them from ordinary “national” crimes that are not punishable under international law. These elements are often referred to as “chapeau” elements or situational elements for the crimes. These can come in the form of objective elements, (such as the widespread or systematic attack or connection with an armed conflict for crimes against humanity and war crimes, respectively) or as a subjective element (such as the specific intent need for genocide). The question therefore is whether or not these contextual elements can be said to have been satisfied in the case of the crimes committed at the Westgate mall.
Considering that Al-Shabaab appeared to be targeting civilians at the mall, and the absence of an armed conflict in Kenya, the appropriate place to begin our analysis seems to be with Crimes Against Humanity.
Crimes Against Humanity
The precondition for classifying an act as a “Crime Against Humanity” as opposed to a domestic crime is that it must have been “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” The concept of attack is then defined to be “a course of conduct involving the multiple commission of acts referred to in paragraph 1 [individual crimes, e.g., murder, rape etc] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” The statute itself does not define the terms “widespread” or “systematic.” Nor are these terms defined in the Elements of Crimes, a supplementary interpretative tool for understanding the meaning of the Rome Statute’s provisions.
The definition of “widespread” as used in international jurisprudence is not 100% clear. It is undisputed that “widespread” character of the attack is in reference to the number of victims (as opposed to the territorial scope of the crime), but the language in the jurisprudence has been less broad in its interpretation of the threshold for making this determination. It is not clear what the numerical inquiry should be when faced with a new situation involving potential Crimes Against Humanity, but it is undisputed that the scale of the attack and number of victims must be considered when making the determination that a widespread or systematic attack has occurred. “Systematic” has been defined as a qualitative element relating to “the organized nature of the acts of violence and the improbability of their random occurrence.”
An individual crime can therefore be prosecuted as a Crime Against Humanity before the ICC when it is committed in connection with a high casualty event or organized act(s) of violence and with knowledge of that event, in furtherance of an organizational policy.
Do the events at the Westgate mall fall into this category?
Before turning to a more statutory analysis, I would like to make a teleological observation on international criminal law, that is, I would like to discuss the purpose of criminalizing behavior at the international level. The thing that separates ICL from municipal criminal law is the interest that it protects, that is, the interests of the international community as a whole. After all, the underlying crimes (murder, rape, enslavement, torture etc) are criminalized by national legislatures all over the world, independent from their status as components of internationally punishable activity. The international community (and therefore each individual State) does not have an interest in punishing every murder or rape in the world. If they did, there would universal jurisdiction for every State to punish every crime committed anywhere in the world according to its own laws regardless of the identity of the perpetrator(s) or the victim(s). However, this is not the case. States must have some form of connection to an event to criminalize and punish it. Similarly, the heinousness of the crime is not enough otherwise every serial killer, torturer or cannibal would be subject to universal jurisdiction, which of course they are not. The same is true of gangland shootouts or systemic violence against the members of minority groups (think of the Klu Klux Klan).
This leads me to believe, based on the purpose of ICL as a protector of international interests, that for an act to be a “widespread or systematic attack against a civilian population” that “attack,” in whatever form it may take, must be something that threatens interests at the international level. I have written elsewhere that the creation of Crimes Against Humanity has seen a continual evolution toward an equation with gross violations of internationally protected human rights. In this light, if the “attack” is not related to gross violations of these internationally protected interests, it cannot be an “attack” within the meaning of Crimes Against Humanity.
The question to answer is then, what international interest was threatened by the events in Nairobi?
I struggle to see what that international interest could be. This event – tragic and hateful, for which the perpetrators must be punished – is a crime of national import. Otherwise, any hostage situation or horrible crime of violence could be characterized as a Crime Against Humanity. The Oklahoma City bombing might qualify (hundreds of people were killed) and the same could be said about the Boston Marathon Bombing (while 3 people died, over 200 were injured – this could otherwise be considered as 200 counts of attempted murder as a crime against humanity). However, both of these acts feel like national crimes – not international crimes, and this seems correct. International crimes and the international justice system should be reserved for those acts that threaten the international system, that are on such a scale that they destabilize a region or a country as a whole. The events of the Westgate mall just fail to reach that level. While an argument can be made that the attack was widespread (there were many victims) or systematic (it was well planned and effectively carried out) – and it is clear they targeted civilians – the event fails to satisfy a teleological analysis of what it means for there to be a widespread or systematic attack against a civilian population as a contextual element for the commission of an international crime. For this reason, the ICC should not consider charging those allegedly responsible for the events at the Westgate for Crimes Against Humanity.
But wait, the Prosecutor’s press release states that “[s]uch attacks by armed groups upon innocent civilians are contrary to international law.” This could mean that the charges could be for War Crimes having been carried out by armed groups.
Let’s test that hypothesis.
The precondition for qualifying as a War Crime is that the underlying crime be “closely related to hostilities occurring in territories controlled by [the] parties” to an armed conflict, but not necessarily in a conflict zone. An armed conflict is then defined as occurring whenever “there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State.”
Without a doubt there is a war going on in Somalia. Al-Shabaab, the group who claimed responsibility for the events at the Westgate, is an active participant in that war, and at times has been on the winning side of major confrontations with Somali national forces. Kenya has at times participated in this conflict on the side of the national forces fighting Al-Shabaab. Could this provide the link to the armed conflict in Somalia so as to qualify the crimes at Westgate as being of international concern?
I think that it can, but not because Al-Shabaab is an “armed group” that killed “innocent civilians.” If this were the case any armed street gang that took actions that resulted in the deaths of innocent bystanders would qualify. And not because Al-Shabaab is fighting in a conflict in Somalia, but because Al-Shabaab is fighting a conflict in Somalia in which Kenya is a participant. Furthermore, and this is necessary, because Al-Shabaab specifically characterized the Westgate events as a reprisal for Kenya’s aiding the Somali government as the reason for its actions. Should any one of these elements (the existence of an armed conflict, both sides participation in that armed conflict and the connection of the events at the Westgate mall to that conflict) fail to be proved before an international criminal tribunal (such as the ICC) it would mean that charges of international crimes would have to fail, the defendants acquitted and the events at the Westgate mall would be chargeable only as municipal crimes.
The statement by the Prosecutor of the ICC about the actions of Al-Shabaab at the Westgate mall as being contrary to international law is most likely an accurate statement. However, her statement failed to clearly set out on what basis the assertion was made. Each category of international crimes has its own detailed doctrines and elements that distinguish them from ordinary “national” crimes that are not punishable under international law. These elements are often referred to as “chapeau” elements or situational elements for the crimes. These can come in the form of objective elements, (such as the widespread or systematic attack or connection with an armed conflict for crimes against humanity and war crimes, respectively) or as a subjective element (such as the specific intent need for genocide). This brief analysis has shown that the crimes at the mall are most likely not chargeable as Crimes Against Humanity, which might have at first glance seemed to be the most appropriate way to charge them. However, a more expansive view shows that they are most likely punishable as War Crimes.
The choice of whether or not to move ahead with international trials for those responsible for the horrors of those three days in Nairobi will be, for lack of a better enforcement mechanism, a political decision. As it is, the Kenyan government has voted to leave the ICC system. This would greatly reduce the likelihood of an international trial leaving any trial to States that can gain custody of the accused and is interested to prosecute them.
 It is worth noting that while Kenya is a member of the court, its parliament recently voted to leave that organization. The consequences of this will need to be reviewed in another setting. See, http://www.bbc.co.uk/news/world-africa-23969316.
 There will also be jurisdiction over the crime of aggression in the future.
 See, Joseph William Davids, The Tenth Anniversary of the International Criminal Court: From Crimes Against Humanity to Human Rights Crimes, 18 New Eng. J. Int’l & Comp. L. 225 (2012). There is no indication that this was a genocidal attack, so there will be no further discussion of this crime.
 See, Article 7(2), Rome Statute of the International Criminal Court. See also, Davids at 233.
 Ibid. at Article 7(2)(a).
 For example, the ICTR in the Akayesu case articulated that the “concept of ‘widespread’ may be defined as a massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.” Akayesu para. 580. Subsequent decisions of the ICTR have echoed this definition, more succinctly, interpreting “widespread” as follows: “scale of the attacks and the multiplicity of victims”, see Muhimana para 257, “large scale, involving many victims” Kajalijeli para. 871. The ICTY has been somewhat looser with its definition of “widespread”, stating that the widespread requirement refers to “the large-scale nature of the attack and the number of targeted persons.” See Dixon p, 178, quoting Kordic Dec. 17 2004 para 94.
 Kunarac, appeals, 12 June 2002, para 94.
 There is an interesting debate about whether the “plan or policy” requirement of the ICC statute should be restricted to States. However, for the time being this seems to have been settled in favor of including non-State actors. See, e.g., Prosecutor v. Ruto & Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373 (23 January 2013).
 This is a very long and complex discussion for which there is unfortunately not enough room here. For summaries purpose, States have jurisdiction over their territory, their nationals and those acts that threaten their national security. I will attempt to address this subject in more detail at a later date.
 A single event may constitute an attack against a civilian population and “widespread” means number of those killed.
 It is worth noting that the Special Tribunal for Lebanon has jurisdiction over a terrorist bombing incident. However, this is not an international tribunal in the strictest sense. It was formed by an agreement with a national government and applies – in addition to international law – the national law of that State. The nature of the STL is a wonderfully interesting subject, but far outside the scope of this humble post.
 This would be the case with the unrest in Syria and Libya in recent memory and Yugoslavia and Rwanda in the 1990’s.
 See, ICTY, Prosecutor v. Gotovina et. al., Trial Judgment, ¶ 1677 (15 April 2011). See also, ICC, Prosecutor v. Lubanga, Trial Judgment, ¶ 504 (14 March 2012).
 ICTY, Prosecutor v. Tadic, Trial Judgment (2 October 1995), cited by Gotovina and Lubanga.
 The history of the collapse of Somali is another fascinating and tragic subject of inquiry that this post cannot hope to cover in a way that even remotely pays these events the respect that they are due.