International Criminal Justice

(p. 671) 30  International Criminal Justice

1.  Introduction

It is not too much of an exaggeration to say that the United Nations era began with a trial and a promise. The trial was that of the major German war criminals at Nuremberg. The promise was that the principles underlying the Nuremberg Charter would be treated as international law: only thus would the apparent selectivity and retrospectivity of Nuremberg be redeemed. But despite the Tokyo trials and some further trials in Germany, mostly under the auspices of the occupying powers, the arena of international criminal law became populated by conventions largely without implementation, and state practice turned to emphasize national trials for specified treaty-defined offences such as aircraft hijacking and drug trafficking.

Then, in the early 1990s, the arena came to life: ad hoc criminal courts were created by Security Council decree, a permanent International Criminal Court (ICC) was established at great speed, and there was much other activity. More than half a dozen international or ‘internationalized’ tribunals now exist, and they are generating a more robust body of jurisprudence on war crimes, crimes against humanity and genocide, as well as a more developed set of understandings concerning procedure. Developments at the international level have also sparked changes in domestic jurisdictions, including an increasing—though still small—number of domestic prosecutions of international crimes, including on the basis of universal jurisdiction.

The rapid development of the international criminal law field has not been without pitfalls. The operation of the international criminal tribunals has been far more expensive and time-consuming than anticipated, and the conduct of proceedings has generated controversy, particularly in cases involving high-profile figures. Most importantly, questions remain about the broad goals of this field. Although the prosecution of individuals responsible for the commission of international crimes may be justified on the basis of retribution and deterrence, a balance between national and international processes, and between peacemaking or post-conflict reconciliation and (p. 672) the reduction of impunity, has proved elusive.1 If there was any jury in this field (which there is not),2 it would still be out.

2.  Development of International Criminal Law and Institutions

(A)  Pre-1945 Aspirations

The modern history of international criminal law sputtered into half-life in 1919, when the Allies established a Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties, which proposed the creation of an Allied High Tribunal to try violations of the laws and customs of war and the law of humanity.3 The Tribunal never came into being: a few Germans were instead prosecuted domestically at the ‘Leipzig trials’, suffering token penalties.4 There were discussions in the League of Nations about an international criminal court, but a statute concluded in 1937 obtained only a single ratification (British India).5

(B)  The Nurembergand Tokyo Tribunals

On 8 August 1945, the four Allied Powers concluded the London Agreement, establishing the International Military Tribunal (the Nuremberg Tribunal).6 The Charter, annexed to the Agreement, provided for the prosecution of individuals for war crimes, crimes against humanity, and crimes against peace.7 Each of the Tribunal’s four principal judges represented one of the major Allied Powers, and the prosecution of the various counts of the indictment was divided among prosecutors from the four powers.8 After a 10-month trial, three defendants were acquitted; the remaining 19 were convicted and sentenced to death or imprisonment. Three organizations were found to be(p. 673) criminal, three were cleared.9 The Nuremberg judgment was notable for its rejection of the argument that the Charter breached the principle of legality, as well as its holding that individuals may be held directly responsible under international law.10

The International Military Tribunal for the Far East was established not by a multilateral treaty but by a Special Proclamation issued by MacArthur, the Supreme Commander for the Allied Powers in Japan.11 The Tokyo Tribunal consisted of 11 judges, from the nine signatories to the Japanese Instrument of Surrender as well as India and the Philippines.12 A lengthy trial concluded in November 1948 with convictions for all surviving 25 defendants, who were sentenced to death or imprison-ment.13 The judgment generated substantial controversy among the judges,14 and it has attracted criticism to a greater extent than the Nuremberg judgment, procedurally as well as substantively.15 According to Judith Shklar:

Natural law thinking played no part at Nuremberg, where every effort was made to build on the fiction of a positive international law envisaged as analogous in its formal structure to the legalistic image of municipal law in matured systems. At Tokyo natural law was, indeed, introduced, with very unfortunate results.16

In addition, prosecutions for war crimes, crimes against humanity, and crimes against peace were conducted in Germany by the Allied Powers in their respective zones of occupation under Control Council Law 10, as well as in the Pacific theatre.17

(C)  Normative Developments Following the Second World War

The Nuremberg judgment had an immediate impact. The General Assembly unanimously affirmed ‘the principles of international law recognized by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal’.18 The ILC was directed to formulate the principles of international law recognized in the Tribunal’s judgment, and to prepare a draft code of offences against the peace and security of mankind. The ILC listed the following ‘crimes under international law’: crimes against peace, war crimes, (p. 674) and crimes against humanity.19 It also identified as punishable the participation in a common plan or conspiracy for the accomplishment of any such acts, as well as complicity in their commission. But it did not go much beyond the Nuremberg formulations. For example, the category of ‘crimes against humanity’ was not freestanding:

Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.20

The ILC’s work on a ‘code of crimes’ proceeded slowly. After two separate phases of drafting between 1947–54 and 1982–96, the ILC in 1996 adopted 20 draft articles constituting a Code of Crimes against the Peace and Security of Mankind.21 The Code was never implemented as such, being superseded by the Rome Statute.22

More important than the early ILC work was the conclusion of the Genocide Convention in 1948,23 and the ‘grave breaches’ provisions of the 1949 Geneva Conventions.24 Both envisaged prosecutions in national courts, but in fact little or nothing was done by way of enforcement, despite the Cambodian ‘genocide’25 and war crimes in a variety of theatres, including Vietnam.26

3.  International Criminal Courts and Tribunals

(A)  The Ad Hoc Tribunals

(i)  The Yugoslav Tribunal

The end of the Cold War coincided with the dissolution of Yugoslavia, and increased opportunities for the Security Council to respond to ensuing armed conflicts.27 In(p. 675) May 1993, the Security Council acted under Chapter VII to establish an international tribunal in The Hague for the ‘purpose of prosecuting persons responsible for serious violations of international humanitarian law’ committed in the former Yugoslavia after 1 January 1991.28 Because of the tribunal’s open-ended temporal jurisdiction, it was able to prosecute crimes committed not only between 1991 and December 1995, when the Dayton Agreement was signed, but also in the late 1990s, when further violence ensued in Kosovo. There was controversy about whether the Security Council could create a criminal tribunal, but the International Criminal Tribunal for the former Yugoslavia (ICTY) upheld its own constitutionality, relying in part on the parallel support of the General Assembly (responsible for the ICTY budget, which exceeded US$100 million per annum).29

The ICTY slowly began functioning according to the relatively skeletal statute annexed to SC Resolution 827, and with detailed Rules of Procedure and Evidence made by the judges and frequently amended.30 The Statute grants the ICTY the power to prosecute persons for violations of the laws or customs of war, genocide, and crimes against humanity (more broadly defined than at Nuremberg).31 Although the ICTY and national courts have concurrent jurisdiction, the ICTY has primacy, and in its early years the Tribunal requested that national courts defer to its competence in situations where both were seeking to exercise jurisdiction.32

The ICTY proceeded slowly, in part because of a lack of accused persons in its custo-dy.33 It came under early criticism for prosecuting relatively minor figures, ‘small fish’ such as Duško Tadić, a local leader of the Serb Democratic Party in Bosnia who had no involvement in policy-making or planning and who was already being prosecuted in Germany.34 This began to change in the late 1990s, when NATO became involved in effecting arrests, pro-EU parties were elected into government in the countries concerned and some accused voluntarily surrendered to the Tribunal.35 There followed the arrest and transfer in 2001 of Slobodan Milosević, former president of the SFRY. The Prosecution initially charged Milosević with respect to the conflict in Kosovo, but then joined the Kosovo indictment with two separate indictments regarding Croatia(p. 676) and Bosnia.36 The result was an unmanageably large indictment of over 60 counts, and an unwieldy, lengthy trial, during which the judges struggled to deal with Milosević’s astute and highly disruptive conduct.37His sudden death in 2005, before the end of the trial, was a significant blow. Subsequently the ICTY has gained custody over two other high-profile accused who had eluded capture for many years: Karadzić, the President of Republika Srpska,38 and Mladić, the Commander of the Main Staff of the Bosnian Serb Army.39 Remarkably, none of the ICTY’s 161 indictees remains at large.

By 2000, the unanticipated length and cost of the Tribunal’s operations led the Security Council to press the ICTY to develop a completion strategy.40 Although the ICTY was already focusing on the prosecution of ‘the most senior leaders suspected of being most responsible for crimes’, this became an explicit requirement.41 In addition, the Rules of Procedure and Evidence were amended to allow the ICTY to transfer cases back to national courts, reversing the earlier trend of deferrals to the ICTY. So far the ICTY has indicted 161 persons; proceedings have concluded for 126 accused (with 64 convictions on some or all charges and 13 complete acquittals).42

(ii)  The Rwanda Tribunal

In April 1994, the assassination of Rwandan President Habyarimana ignited the slaughter of Tutsi and moderate Hutus, resulting in the deaths of approximately 800,000 persons over the course of several months.43 Given the recent creation of the ICTY in response to an armed conflict in Europe, it was considered necessary to create an analogous tribunal following genocide in Africa.44 In November 1994, after an ineffectual response to the genocide itself, the Security Council created the International Criminal Tribunal for Rwanda (ICTR), located in Arusha, Tanzania.45 The Appeals Chamber is shared with the ICTY.46 The ICTR and the ICTY also shared a prosecutor until 2003, when the Security Council considered it necessary for a prosecutor to be dedicated solely to the ICTR in order for it to fulfil its completion strategy.47

The ICTY Statute provided a model for the Statute of the ICTR, which similarly endows the ICTR with ‘the power to prosecute persons responsible for serious violations of international humanitarian law.’ There are, however, differences between(p. 677) the Statutes, such as the omission of an article in the ICTR Statute for prosecution for grave breaches of the Geneva Conventions of 1949, on account of the non-inter-national character of the armed conflict in Rwanda. The Statute instead provides for jurisdiction over violations of Article 3 common to the 1949 Geneva Conventions and of Additional Protocol II, which apply in non-international armed conflicts. In addition, the ICTR Statute requires a discriminatory motive as an element of crimes against humanity, although it has been held that this is not a requirement under customary international law.48 The scope of the ICTR’s jurisdiction is also narrower than that of the ICTY; its temporal jurisdiction runs from 1 January to 31 December 1994. The ICTR issued indictments for only 110 accused49 and its budget has been smaller than that of the ICTY, although still substantial.50

The ICTR also began operations quite slowly, but it initially gained custody of indictees more successfully than did the ICTY.51 In its early years, it experienced serious mismanagement, leading to the resignations of the Registrar and the deputy Prosecutor.52 Already strained relations between the ICTR and Rwanda deteriorated following the Appeals Chamber’s decision to decline jurisdiction over Barayagwiza, one of the media advocates of the genocide, on the grounds that his pre-trial detention violated his human rights.53 Rwanda suspended co-operation with the ICTR, thereby impeding the progress of trials at the Tribunal. The next year, the Appeals Chamber controversially reversed its decision54 and the relationship between Rwanda and the ICTR improved. Trials have nevertheless proceeded slowly, and the Security Council required it to develop a completion strategy which has involved, in part, the referral of cases to third countries such as France,55 and eventually to Rwanda itself.56

Like the Tadić case at the ICTY, the Akayesu case was the first to go to trial at the ICTR, and has been seminal, representing the first conviction by an international tribunal for genocide, as well as the first time that rape in war was held to constitute genocide.57 The ICTR’s ‘Media’ judgment is significant for its conviction of three radio and newspaper executives for public incitement to genocide.58

(p. 678) In 2010, the Security Council decided to establish the International Residual Mechanism for Criminal Tribunals to finish the remaining tasks of the ICTY and ICTR. The Security Council requested both tribunals to take all possible measures to complete all their remaining work no later than the end of 2014. The Mechanism’s ICTR branch will commence its operations on 1 July 2012 and the ICTY branch on 1 July 2013. The Mechanism will have the same jurisdiction, rights, obligations and essential functions, subject to provisions of Resolution 1966 and the Statute of the Mechanism.59

(iii)  The ad hoc tribunals: an evaluation

Between them, the two tribunals have produced a substantial body of jurisprudence. The ICTR has made a significant contribution, for example, regarding gender crimes. Among the developments led by the ICTY, joint criminal enterprise (JCE) has been perhaps the most prominent. Under this doctrine, individuals may be held liable for crimes committed as part of a common plan carried out either jointly or by some members of the group.60 The Appeals Chamber in Tadić explained that JCE constitutes a form of commission, even though Article 7(1) of the Statute does not explicitly provide for it. JCE may take three different forms. Under the ‘basic’ form, all co-perpetrators carry out a common purpose with the same criminal intention.61 Under the ‘systemic’ form, a group of persons acts according to a common plan at a concentration camp or detention facility.62Finally, under the particularly controversial ‘extended’ form, the perpetrator commits a crime which was outside of the common plan, but was a ‘natural and foreseeable consequence’ of carrying out the common purpose.63JCE has generated scholarly criticism as a form of guilt by association (it is colloquially referred to as ‘just convict everyone’).64 It is not included in the Rome Statute.

(B)  The International Criminal Court

Proposals for the establishment of a permanent international criminal tribunal date as far back as 1872, when Gustav Moynier, one of the founders of the ICRC, discussed the idea.65 Although the Genocide Convention contemplated an ‘international penal tribunal’,66 no such institution was established: indeed until 1989 such a proposal seemed hopelessly utopian.

(p. 679) (i)  The work of the ILC

At the request of the UN General Assembly the ILC produced a draft statute for a permanent court (1953), but the General Assembly never proceeded with the matter due to difficulties concerning the definition of aggression and to underlying Cold War politics.67 In 1989, Trinidad and Tobago proposed that the issue be put back on the General Assembly’s agenda because of its wish to see international prosecutions of drug-related offences.68 The matter was referred to the ILC which in two years produced a draft statute.69 The 1994 draft was in most respects a more modest proposal than the statute that was ultimately adopted in 1998, but it paved the way to Rome.

(ii)  The Rome Statute (1998)

Following detailed work by the Prepcom, the ICC’s Statute was finalized at a five-week conference in 1998: it entered into force on 1 July 2002, after 60 ratifications.70 The ICC, located in The Hague, began its work in 2003. Its jurisdiction is limited to ‘the most serious crimes of concern to the international community as a whole’, namely, genocide, crimes against humanity, war crimes, and the crime of aggression. The Assembly of States Parties also adopted the Elements of Crimes, intended to assist the Court in the interpretation and application of these crimes. The ICC’s temporal jurisdiction does not extend to offences committed prior to the entry into force of the Statute.71 Its territorial jurisdiction extends to the territory of states parties; its personal jurisdiction covers nationals of those states. The ICC may also exercise its jurisdiction with respect to the territory and nationals of a state not party to the Rome Statute if that state has accepted the ICC’s jurisdiction in accordance with Article 12(3), which provides that a state not a party to the Statute may accept the ICC’s jurisdiction by a declaration lodged with the Registrar. This was done, for example, by Côte d’Ivoire.72 It is also possible for the ICC to exercise jurisdiction over nationals of third states if the conduct in question occurred on the territory of a state party,73 a possibility which has given rise to major objections on the part of the US. But none of these restrictions with respect to personal or territorial jurisdiction apply in case of a Security Council referral.

(p. 680) The ICC’s exercise of jurisdiction may be triggered in three different ways, all of which have been utilized in its first decade.74 First, a state party may refer to the ICC a situation where one or more crimes within the Court’s jurisdiction appear to have been committed.75 Uganda, the Democratic Republic of Congo, and the Central African Republic have referred such situations to the ICC, and the Prosecutor initiated investigations in all of them. Secondly, the Security Council, acting under Chapter VII, may refer a situation to the Prosecutor. The Security Council did so in 2005 with respect to the situation in Darfur, Sudan, and in 2011 with respect to the situation in Libya.76 Finally, the Prosecutor may initiate an investigation independently. In March 2010, Pre-Trial Chamber II granted the Prosecution’s request to open an investigation into the post-election violence that took place in Kenya in late 2007 and early 2008, and in October 2011, the Prosecutor’s application to proceed in Côte d’Ivoire was also accepted by Pre-Trial Chamber III.77 Even though three out of these seven situations came before the court by virtue of self-referrals, the fact that all the ICC’s situations concern Africa has generated criticism and contributed to strained relations between the ICC and the African Union.78

Whereas the ICTY and ICTR had primacy of jurisdiction, the ICC’s jurisdiction is ‘complementary’. This means that if in a specific case there are, or have been, genuine domestic proceedings, the case is inadmissible before the ICC.79 It should be stressed that it is cases which are inadmissible, not situations. This is one of the weaknesses of the complementarity regime: in situations of mass crime, the Prosecutor will almost always be able to find a case that has not been prosecuted domestically.80

In the spirit of the principle of complementarity, some states parties have enacted legislation allowing national courts to exercise jurisdiction over ICC crimes whether committed by their nationals or on their territory or more broadly (although the Rome Statute does not require this). Neither a national amnesty law nor a promise of immunity conceded in a fragile peace process can halt ICC proceedings on grounds of complementarity since in the absence of domestic proceedings cases are admissible before the ICC. Commentators have suggested that the Prosecutor nevertheless has(p. 681) the discretion to decline to investigate such situations, for example, where an investigation would ‘not serve the interests of justice’.81

The ICC’s process is somewhat more civil-law-oriented than that of the ad hoc tribunals. It includes a Pre-Trial Chamber whose functions include authorizing investigations, issuing arrest warrants and summonses to appear, and deciding on the confirmation of charges. In addition, the Statute provides for the participation of victims in proceedings and for reparations for victims.82

(iii)  The United States and the ICC

The position of the US towards the ICC has evolved considerably since 1998.83 The US delegation to the Rome Conference lobbied for significant changes to make the Statute more acceptable.84 Even though it failed to achieve its goals, President Clinton signed the Rome Statute on 31 December 2000, the last available day for doing so. The position of the US towards the court changed dramatically under President Bush: the US ‘unsigned’ the Statute85 and concluded a series of bilateral agreements with states parties under Article 98(2) of the Statute, designed to prevent the latter from surrendering its citizens to the ICC.86 The US stance softened somewhat during the Bush adminis-tration’s second term: for example, it refrained from vetoing the Security Council’s referral of the Darfur situation to the ICC.87 While the Obama administration has engaged in a positive manner with the ICC and voted with the majority of the Security Council to refer the situation in Libya, ratification of the Rome Statute remains highly unlikely.

(iv)  The crime of aggression

An important development occurred at a Review Conference in Kampala, Uganda in June 2010, when the Assembly of States Parties defied expectations by agreeing upon a definition of the crime of aggression.88 The definition now included in the Statute requires that an act of aggression constitute a ‘manifest violation’ of the UN Charter, a term with uncertain meaning. In addition, the states parties resolved a long-standing debate about the trigger mechanisms for prosecutions of aggression by deciding that, in addition to the Security Council, states parties can refer a situation to the ICC, and that the Prosecutor, with the authorization of the Pre-Trial Chamber, can initiate an(p. 682) investigation proprio motu. The Security Council does not have the monopoly on the determination whether an act of aggression has taken place. The amendments regarding aggression will not come into force until 2017 at the earliest; even then, parties may opt out under certain conditions.

(v)  Interim evaluation

It is far too soon to offer an evaluation of the ICC, but the legal and practical challenges faced by the court merit some mention.

At the legal level, the ICC has shown a measure of adaptability, even to a fault. For example, unlike the ICTY and ICTR there is no doctrine of joint criminal enterprise, but instead reliance on notions of direct and indirect perpetration.89 Other features include the early erosion of complementarity; issues with victim participation,90and the disregard for President Bashir’s immunity. The Rome Statute provides that immunities do not bar the Court from exercising jurisdiction once an accused is present before it, but it is far from clear that a foreign head of state could be surrendered to the Court without violating state immunity.

At the practical level, the fact is that unlike Nuremberg and Tokyo, the ICC does not deal with those already defeated in conflicts but becomes an instrument in conflict. The greatest obstacle so far has been obtaining custody of the accused, particularly of figures such as Omar Al-Bashir, the President of Sudan and Joseph Kony, head of the Lord’s Resistance Army. President al-Bashir’s visits to other African states parties to the Statute have highlighted the practical difficulties the ICC faces in enforcing arrest warrants. Where it has secured the accused, however, the ICC has proved capable of delivering a verdict.91

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