The Crime of Persecution in the ICTY Case-law
The Crime of Persecution in the ICTY Case-law
The ICTY prosecutor and judges have found in the crime of persecution a suitable category to address the types of crimes committed in the former Yugoslavia during the conflict in the 1990s. For example, out of the sixty-three persons who to date have been convicted by the ICTY, forty had been charged with this crime. In contrast, the crime of persecution was hardly applied in international or national law before the start of the ICTY proceedings. The ICTY case law dealing with the crime of persecution is one of the most important contributions of the ICTY to international criminal law. However, the ‘discovery’ of the crime of persecution by the ICTY involved certain risks for the judges, in particular since the exact boundaries of the definition of this crime, beyond what could be understood from the words of the statutory definition, had not been set out or explored in previous jurisprudence. The ICTY case law contains considerations of the contours of the criminal conduct in question with the accompanying risk of entering convictions for acts that were not criminal at the time they were carried out, and thereby violating the principle of nullum crimen sine lege. This chapter examines how the exact content of the crime of persecution is being determined in the ICTY case law by the requirements of the principle of nullum crimen sine lege, on the one hand, and a desire for it to address a series of acts or a criminal campaign, rather than one or more isolated acts, on the other.
Keywords: persecution, crimes against humanity, nullum crimen sine lege, ethnic cleansing, Tadic, Vasiljevic, Kupreskic, Kvocka, Flick case
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