Finnish Yearbook of International Law (Volume XVI, 2005) (v. 16)

FINNISH YEARBOOK OF INTERNATIONAL LAW

FINNISH YEARBOOK OF INTERNATIONAL LAW Volume XVI, 2005

Ius Gentium Association

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON

A C.I.P. Catalogue record for this book is available from the Library of Congress. ISSN 0786-6453 ISBN 978-90-04-16297-6 ________________________________________________________________________________ Published by Brill, P.O. Box 9000, 2300 PA Leiden, The Netherlands. [email protected], http://www.brill.nl Sold and distributed by Brill c/o Turpin Distribution Stratton Business Park Pegasus Drive, Biggleswade Bedfordshire SG18 8TQ United Kingdom T +44 (0) 1767 604-954 F +44 (0) 1767 601-640 [email protected]

Cited as: FYBIL

Printed on acid-free paper All Rights Reserved © 2008 Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprint Martinus Nijhoff Publishers No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the copyright owner. Printed in the Netherlands

Finnish Yearbook of International Law Editor-in-Chief Jan Klabbers Executive Editor Katja Creutz Symposium Editor Rain Liivoja Editors Viljam Engström Petra Hagelstam Katja Keinänen Kati Kulovesi Päivi Leino Samuli Seppänen Associate Editors Shakira Bedoya-Sánchez Tobias Bräutigam Anna Huilaja Virpi Koivu Yrsa Korkman

Riikka Koskenmäki Taru Kuosmanen Pekka Niemelä Ilona Nieminen Juha Rainne Symposium Guest Editors Matthias Goldmann Cornelia Schneider Ann Swampillai Isabelle Walther Layout Ville Peltokorpi

Søren Rasmussen Rouzy Vafaie Varro Vooglaid Åsa Wallendahl

vi Editorial Advisory Board Chair Jarna Petman Ruth Donner Kari Hakapää Lauri Hannikainen Päivi Kaukoranta Esko Kiuru

Outi Korhonen Erkki Kourula Pirkko Kourula Raimo Lahti Marja Lehto

Ari-Matti Nuutila Esa Paasivirta Allan Rosas Martin Scheinin Markku Suksi

International Advisory Board Chair Bengt Broms Daniel Bardonnet Ove Bring James Crawford Vladimir Djuro Degan

Christian Dominicé † Sir Robert Jennings Vladimír Kopal Shabtai Rosenne Bruno Simma

Sir Ian Sinclair Antti Suviranta Hugh W.A. Thirlway Holger Rotkirch

Honorary Board Chair Kari T. Takamaa Veijo Heiskanen Sirkku Hirvonen

Juhani Kortteinen Tuomas Kuokkanen Juhani Parkkari

Ritva Saario Matti Tupamäki

vii We welcome unsolicited contributions related to international law. All manuscripts and editorial correspondence should be addressed to: Executive Editor Finnish Yearbook of International Law Faculty of Law P.O. Box 4 (Yliopistonkatu 3) FIN-00014 University of Helsinki, Finland e-mail: fybil-editors@helsinki. You’ll nd general information for authors and a detailed guide to our house style at the end of this book. – We look forward to hearing from you.

Contents Symposium (edited by Rain Liivoja) National Implementation of the Rome Statute of the International Criminal Court Foreword Matthias Goldmann: Implementing the Rome Statute in Europe: From Sovereign Distinction to Convergence in International Criminal Law? Mirela Shuteriqi: Implementation of the Rome Statute in Albania Magdalena Forowicz: Implementation of the Rome Statute in Belgium Rain Liivoja, René Värk and Merri Kastemäe: Implementation of the Rome Statute in Estonia Jussi Ohisalo: Implementation of the Rome Statute in Finland Martin Heß, Nandor Knust and Christine Schuon: Implementation of the Rome Statute in Germany Paola Sacchi and Silvia Borelli: Implementation of the Rome Statute in Italy Sergey Vasiliev and Anna Ogorodova: Implementation of the Rome Statute in Russia Simon P. Olleson and Matthew R. Brubacher: Implementation of the Rome Statute in the United Kingdom

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5 31 55 79 103 133 163 197 235

Articles Tobias Bräutigam: Comparative Law and the US Supreme Court: Roper v. Simmons and the Quest for Theory Linda Johanna Friman: War and Peace in Outer Space: A Review of the Legality of the Weaponization of Outer Space in the Light of the Prohibition on Non-Peaceful Purposes

261

285

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Jan Klabbers: Reections on Soft International Law in a Privatized World James O’Connor: US Neoconservatism and the Rule of Radical Occasionalism – Carl Schmitt’s War on Terror? Aurel Sari: The Danish Cartoons Row: Re-Drawing the Limits of the Right to Freedom of Expression?

313

329

365

Book Reviews & Review Articles Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (Jan Klabbers) Deborah Z. Cass, The Constitutionalization of the World Trade Organization. Legitimacy, Democracy, and Community in the International Trading System (Kati Kulovesi) China Miéville, Between Equal Rights: A Marxist Theory of International Law (Anne Orford) María José Falcón y Tella (ed.), Anuario Derechos Humanos. Nueva Época. vols 3 and 4 (Mónica García-Salmones)

401 407 416 428

New Finnish Doctoral Dissertations in International Law Pamela Slotte (English Summary of the Doctoral Dissertation defended 5 December 2005):

Mänskliga rättigheter, moral och religion – Om de mänskliga rättigheterna som moraliskt och juridiskt begrepp i en pluralistisk värld [Human Rights, Morality and Religion – On Human Rights as a Moral and Legal Concept in a Pluralistic World] Statement by Lars Østnor

438 450

Päivi Gynther (English Summary of the Doctoral Dissertation defended 1 September 2006):

From Utopia to Quintessence: Education Law from the Viewpoint of Roma and Skills Deciency Statement by Manfred Nowak

453 464

General Information for Authors

473

Ius Gentium Association

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Symposium National Implementation of the Rome Statute of the International Criminal Court

Foreword The compilation of papers on the implementation legislation of the Rome Statute of the International Criminal Court in selected countries that forms the Symposium part of this Finnish Yearbook of International Law represents the culmination of a long process that started out a number of years ago. Originally devised under the auspices of the European Law Students’ Association (ELSA), the project was initiated by a group of young lawyers who attended the 10th Preparatory Commission for an International Criminal Court, held in New York from 1 to 12 July 2002. The idea at the time was to take advantage of ELSA’s widespread membership in over 35 countries in order to examine the conformity with the Rome Statute of national criminal legislation and cooperation laws, particularly in countries that had received little coverage in the conventional literature. The project’s initial focus was on providing a practitioner’s guide that would highlight problems and advantages of respective implementation legislation or make proposals for the introduction of such legislation. In addition, the project placed great emphasis on allowing for easy comparison between the various country-specic studies. In order to achieve these objectives, the project coordinators carefully devised a questionnaire that would serve as the basis for each study. Here, the intention was less to deprive researchers of creative license than to ensure that the compilation in its entirety would form an easyto-navigate reference tool of high academic standards. While the individual country studies have now been adapted for the purposes of this publication, it remains true that their structure follows a common approach that we hope will facilitate comparison between the various countries. The research was carried out by young lawyers from across Europe. Many of them combined academic credentials with practical experience and had access both to high-prole academics and national ofcials involved in the drafting of implementation legislation in their country. The Finnish Yearbook carefully selected the best studies for publication, giving due consideration to geographic representation. The authors of the country studies and the current guest editors were supported in their work by the goodwill and dedication of a large number of people without whom this project would never have taken place and who deserve gratitude for their assistance. Roger Clark, Fausto Pocar, William Schabas, and Otto Triffterer acted as early patrons to the ELSA Project on ICC National Implementation Legislation

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(PINIL), lending it support and credibility. ELSA International in Brussels and the Coalition for an International Criminal Court were also very supportive of the project. The organizers of the 4th Annual Helsinki Seminar on International Criminal Law— ELSA Helsinki and Pykälä, but in particular Jussi Ohisalo—made possible an ELSA PINIL Researchers’ Conference in Helsinki in 2005. The Grotius Institute of Legal Studies provided PINIL with ofce space and logistical support in its starting years. ELSA members throughout Europe acted as national coordinators and promoted the project at their universities. Simon P. Olleson provided invaluable help with drafting the questionnaire, which was reviewed by Jan Nemitz. Numerous professors and practitioners around Europe agreed to supervise individual country reports. Silvia Martinez Canton, Simon P. Olleson, and Sergey Vasiliev, Patrick Zupansic, Liza Popova, Andreas Stomps and Danielle Koepershoek provided editorial assistance and support of the project at various stages. Editors of the Finnish Yearbook helped to put nishing touches to the papers published here. We are deeply grateful to them all. Lastly, praise is due to the researchers who devoted much time and energy to their individual country studies, both those whose contributions you will nd within these pages and those whose papers will be published online,1 most notably Silje Blix-Nilsen, Daniela Boteva, Alper Cinar, Wojciech Dzigiel, Pål Eriksen, Candelaria Estevez, David Krivanek, Hanna Kuczynska, Ieva Kalnina, Sander van Niekerk, Martins Paparinskis, Jeppe Songe-Møller, and Petra Tyllova. We hope that this research will be valuable to practitioners and academics alike and that it will prove a modest contribution to a more effective international criminal law regime. Matthias Goldmann Cornelia Schneider Ann Swampillai Isabelle Walther Symposium Guest Editors Rain Liivoja Symposium Editor

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For the references of the online papers, see Matthias Goldmann, ‘Implementing the Rome Statute in Europe: From Sovereign Distinction to Convergence in International Criminal Law?’, in this volume, 5–29, at footnote 22.

Implementing the Rome Statute in Europe: From Sovereign Distinction to Convergence in International Criminal Law? Matthias Goldmann*

I. Introduction: Purpose of the Project The conviction is widespread among scholars and policy-makers that the implementation of the Rome Statute of the International Criminal Court1 into domestic legal orders plays a crucial role for the success of the International Criminal Court (ICC). Otherwise, the Court would be ‘a giant without arms and legs’, as Antonio Cassese famously put it.2 Not surprisingly, therefore, the challenge of implementing the Rome Statute has triggered a large amount of scholarly writing, including collections of comparative analyses of domestic implementation legislation.3 So why add another group of country specic analyses to this pile?

*

First State Examination in Law (Free State of Bavaria, 2004), doctoral candiate (University of Heidelberg), Research Fellow at the Max Planck Institute for Comparative Public Law and International Law (Heidelberg). I would like to thank Dr. Jochen Graf von Bernstorff, Katja Creutz, Prof. Sergio Dellavalle, Rain Liivoja, Simon P. Olleson, Cornelia Schneider, Martin Wortmann and the authors of the country studies for valuable critique and suggestions. Comments are welcome at [email protected]. 1 Rome Statute of the International Criminal Court, 17 July 1998, in force 1 July 2000, 2187 United Nations Treaty Series 90. 2 Antonio Cassese, ‘On the current Trends towards Criminal Prosecution and Punishment of Breaches of international Humanitarian Law’, 9 European Journal of International Law (1998) 2-17 at 13. 3 Cf. the series edited by Albin Eser, Ulrich Sieber and Helmut Kreicker, National Prosecution of International Crimes (5 vols, edition iuscrim: Freiburg, 2003-2005); further compilations of country specic analyses include Roy S. Lee (ed.), States’ Responses to Issues Arising form the ICC Statute (Transnational Publ.: Ardsley, 2005); Claus Kreß and Flavia Lattanzi (eds), The Rome Statute and Domestic legal Orders (2 vols, Nomos: Baden-Baden and Il Sirente: Ripa di Fagano Alto, 2000-2005); Matthias Neuner (ed.), National Legislation Incorporating International Crimes (BWV: Berlin, 2003); David Turns, ‘Aspects of National Implementation of the Rome Statute: The United Kingdom and Selected Other States’, in Dominic McGoldrick, Peter Rowe and Eric Donnelly, The Permanent International Criminal Court (Hart: Oxford, 2004) 337-387.

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Perhaps the present symposium can shed light on a more general aspect of the implementation of the Rome Statute, one that goes beyond the functional attachment of articial limbs for the Court to walk and work, and also beyond the respectable desire to render human rights more effective: The implementation of the Rome Statute could be seen as a litmus test for reassessing the overall state and direction of the international legal order. The state and direction of the international legal order are currently subject to a vivid debate. This debate was triggered by the observation of increasingly close economic, social, political, legal and other relationships among actors of all kinds on a worldwide scale, to which the popular catch-phrase of ‘globalization’ alludes.4 The legal repercussions of globalization, like the increase in collective regulation by public and private, national and international actors, and the rise in the number of international fora for dispute settlement and their cases, have made the post-war paradigm of the international legal order as a ‘law of cooperation’ among sovereign states lose much of its appeal.5 While new paradigms like ‘global governance’6 or ‘multilevel governance’7 have been developed for the specic purposes of the social sciences and have been fairly accepted by these disciplines, the situation is less settled for legal scholarship. Various theoretical proposals compete to provide the most adequate conceptualization of the contemporary international legal order. Only a few of them cling to the traditional paradigm of state sovereignty,8 while most assume that the international legal order has undergone fundamental changes. One proposal replaces the ‘old world order’ concept of sovereign states with a theory about transnational networks in all branches of government.9 Prominent among European scholars is the idea of an in-

4

Anthony Giddens, Runaway World: How Globalization is Reshaping Our Lives (Prole: London, 1999). The characterization of the international legal order as a ‘law of cooperation’ stems from Wolfgang Friedmann’s 1964 stocktaking, who used this notion to distinguish the international legal order of that time from the previous ‘law of co-existence’. Cf. The Changing Structure of International Law (Stevens: London, 1964) at 60-71. 6 James N. Rosenau, ‘Governance, Order, and Change in World Politics’, in id. and Ernst-Otto Czempiel (eds), Governance without Government (Cambridge University Press, 1992) 1-29 at 4. 7 The concept of multilevel governance was rst used to describe European integration, cf. Gary Marks, Liesbet Hooge and Kermit Blank, ‘European Integration from the 1980s: State-Centric v. MultiLevel Governance’, 34 Journal of Common Market Studies (1996) 341-78; Arthur Benz, ‘Governance in Mehrebenensystemen’, in Gunnar F. Schuppert (ed.), Governance-Forschung (2nd ed., Nomos: Baden-Baden, 2006) 95-120. 8 Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (Oxford University Press, 2005); Christian Hillgruber, ‘Souveränität – Verteidigung eines Rechtsbegriffs’, 57 Juristenzeitung (2002) 10721080. 9 Anne-Marie Slaughter, A New World Order (Princeton University Press, 2004). 5

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creasing constitutionalization of the international community,10 while a more modest, transatlantic proposal envisages the emergence of a ‘global administrative law’.11 Others break with the traditional notion of law and emphasize the rationalizing function of transnational legal processes involving all kinds of actors which play a role in the process of globalization.12 Similar, but more skeptical is the forecast that the global legal order is irretrievably about to lose its unity and split into several functionally diversied regimes.13 Another proposal is far from seeing the formalism of international law as a panacea, but considers it a means to curb unleashed hegemonic powers.14 All these theories that go beyond the sovereignty paradigm put considerable weight on the observation that domestic and international legal orders have become more and more interrelated – be it through the spread of international standards, transnational15 effects of domestic provisions or decisions, or the increased weight of individual domestic actors like agencies or private companies in the formation of transnational law. For the purposes of this article, such developments are termed as signs of an increasing ‘convergence’ among domestic and international legal orders. Without denying the considerable, sometimes irreconcilable differences between the mentioned theoretical approaches,16 their common interest in such signs of ‘convergence’ should allow it to refer to them as ‘convergence theories’.

10

Cf. Bardo Fassbender, ‘The United Nationas Charter as a Constitution of the International Community’, 36 Columbia Journal of Transnational Law (1998) 529-619; Christian Walter, ‘Constitutionalising (Inter)national Governance – Possibilities for and Limits to the Development of an International Constitutional Law’, 44 German Yearbook of International Law (2001) 170-201; Erika de Wet, ‘The International Constitutional Order’, 55 International and Comparative Law Quarterly (2006) 51-76. In his general course, Christian Tomuschat puts the weight on the emergence of hierarchically superior norms based on common values, cf. ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century — General Course on Public International Law’, 281 Recueil des Cours (1999) 9-438. A more pluralistic idea of constitutionalism is suggested by Neil Walker, ‘The Idea of Constitutional Pluralism’, 65 Modern Law Review (2002) 317-359. On the various shades of the constitutionalization debate cf. Stefan Kadelbach and Thomas Kleinlein, ‘Überstaatliches Verfassungsrecht’, 44 Archiv des Völkerrechts (2006) 235-266 at 236. 11 Benedict Kingsbury, Nico Krisch and Richard Stewart, ‘The Emergence of Global Administrative Law’, 68 Law and Contemporary Problems (2005) 15-61. 12 Harold Hongju Koh, ‘Transnational Legal Process’, 75 Nebraska Law Review (1996) 181-207. 13 Andreas Fischer-Lescano and Gunther Teubner, ‘Regime Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’, 25 Michigan Journal of International Law (2004) 999-1046. 14 Martti Koskenniemi, ‘Global Governance and Public International Law’, 37 Kritische Justiz (2004) 241254. 15 Hereinafter, the term ‘transnational’ is used to describe any level of governance or of rules above the state, cf. Philipp Jessup, Transnational Law (Yale University Press: New Haven, 1956) at 2. 16 It would be impossible to reconcile, e.g., the universalism of the ‘constitutionalists’ (supra note 10) with the particularism of an approach based on the theory of social systems (supra note 13).

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The overall objective of this project on ICC implementation legislation is not to further this multi-faceted discourse on a theoretical level, but to look for signs of ‘convergence’ in the eld of international criminal law. Criminal law is a highly sensitive policy eld with strong signicance for collective identities. For a long time it had been deemed to be part of the untouchable core of domestic jurisdiction. Signs of ‘convergence’ in this eld can therefore be held to be of high probative value for decisive changes in the international legal order. Not surprisingly, the establishment of the International Criminal Court plays a prominent role in the writings of some ‘convergence theorists’.17 The comparative analysis envisaged in this article might reveal signs of ‘convergence’ in domestic criminal law and procedure.18 From this overall objective, several consequences ensue for the design of the present project. First, it is the overall objective, and not so much a European bias, which underlies the European focus of the project. European states have an exceptionally strong record for opening their legal and political orders to inuence emanating from the international and supranational levels, as can be seen in the success of the European Union or the European Court of Human Rights. Given this experience with ‘convergence’ and the widespread political support for the International Criminal Court in Europe,19 Europe seems predisposed as a forerunner of the ‘globalization of criminal justice’.20 Likewise, if the ‘convergence’ of criminal law should encounter difculties in Europe, it might be a bad omen for other regions, too. To make the ndings as representative as possible, the countries considered in the eight analyses which form

17

Cf. Andreas Fischer-Lescano and Gunther Teubner, Regime-Kollisionen (Suhrkamp: Frankfurt, 2006) at 111-126; Jürgen Habermas, ‘Hat die Konstitutionalisierung des Völkerrechts noch eine Chance?’ in id., Der Gespaltene Westen (Suhrkamp: Frankfurt, 2004) 113-193 at 172. 18 Hans-Peter Kaul has described these phenomena as ‘osmosis’ between national and international criminal law. See ‘Völkerrechtlicher Vertrag und staatliches Recht – am Beispiel des Statuts über den Internationalen Strafgerichtshof ’, in Rudolf Geiger (ed.), Völkerrechtlicher Vertrag und staatliches Recht vor dem Hintergrund zunehmender Verdichtung der internationalen Beziehungen (Nomos: Baden-Baden, 2000) 53-65. 19 Cf. e.g. Council Common Position 2003/444/CFSP of 16 June 2003 on the International Criminal Court, OJ L 150/67, 18 June 2003. 20 Otto Triffterer, ‘Legal and Political Implications of Domestic Ratication and Implementation Processes’, in Claus Kreß and Flavia Lattanzi (ed.), The Rome Statute and Domestic Legal Orders (Nomos: Baden-Baden and Il Sirente: Ripa di Fagnano Alto, 2000), vol. 1, 1-28 at 25-27.

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part of this symposium,21 as well as in seven additional analyses published online,22 were selected with a view to including different geographic regions of Europe,23 different legal cultures, and member states as well as non-member states to the EU.24 Second, the analysis also intends to examine whether signs of ‘convergence’ exist even in the absence of binding international commitments. If such signs can be detected in the legislation or jurisprudence of non-party states, one might hypothesize that signs of ‘convergence’ are part of a general development in the international legal order and not only a necessary reaction to binding international obligations. Therefore, with Russia and the Czech Republic, two states have been included which have not yet ratied the Rome Statute. Third, the overall objective guides the selection of issues for consideration in this introductory article. Although the country specic analyses produced for this project allow for a fairly representative overview on the status of implementation of the Rome Statute, this overarching article only intends to take some cross-cutting snapshots out of the many issues analyzed in the country specic contributions,25 which have been selected with a view to their signicance as signs of ‘convergence’. Three groups of issues can be distinguished:

21

See Mirela Shuteriqi, ‘Implementation of the Rome Statute in Albania’, in this volume, 31-53; Magdalena Forowicz, ‘Implementation of the Rome Statute in Belgium’, in this volume, 55-78; Rain Liivoja, René Värk, and Merri Kastemäe, ‘Implementation of the Rome Statute in Estonia’, in this volume, 79-101; Jussi Ohisalo, ‘Implementation of the Rome Statute in Finland’, in this volume, 103-131; Martin Heß, Nandor Knust, and Christine Schuon, ‘Implementation of the Rome Statute in Germany’, in this volume, 133-161; Paola Sacchi and Silvia Borelli, ‘Implementation of the Rome Statute in Italy’, in this volume, 163-195; Sergey Vasiliev and Anna Ogorodova, ‘Implementation of the Rome Statute in Russia’, in this volume, 197-233; Simon P. Olleson and Matthew R. Brubacher, ‘Implementation of the Rome Statute in the United Kingdom’, in this volume, 235-257. 22 See Daniela Boteva, ‘Implementation of the Rome Statute in Bulgaria’, ; David Kivánek and Petra Tyllová, ‘Implementation of the Rome Statute in the Czech Republic’, ; Ieva Kalnina and Martins Paparinskis, ‘Implementation of the Rome Statute in Latvia’, ; Alper Çinar and Sander van Niekerk, ‘Implementation of the Rome Statute in the Netherlands’, ; Silje Blix-Nilsen, Pål Eriksen and Jeppe Songe-Møller, ‘Implementation of the Rome Statute in Norway’, ; Janez Stusek, ‘Implementation of the Rome Statute in Slovenia’, ; Candelaria Estévez Sánchez de Rojas, ‘Implementation of the Rome Statute in Spain’, (all papers last visited 26 June 2007). 23 Northern Europe: Norway, Finland; Western Europe: Belgium, Germany, Netherlands, United Kingdom; Southern Europe: Italy, Spain; Central and Eastern Europe: Albania, Bulgaria, Czech Republic, Estonia, Slovenia, Russia. 24 At the time of publication, Albania and Russia remain as the only non-EU states. 25 The questionnaire on which the country specic analyses are based is available at (last visited 26 June 2007).

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(a) The rst group of issues addresses the openness of domestic legal orders to transnational inuences. ‘Convergence’ can be assumed to take place wherever domestic legal orders open themselves to international standards, even though they are under no obligation to do so, or where common standards emerge among domestic legal orders. Two issues have been selected which should be particularly fruitful for the study of such openness: First, the status which is given to the Rome Statute in domestic legal orders26 can be taken as a general indicator for the openness of a domestic legal order towards international law. Second, the integration of the core crimes27 of the Rome Statute into domestic criminal law touches upon core questions of national self-understanding28 and interests.29 Any increase in transnational openness would therefore be a particularly strong sign of ‘convergence’. (b) ‘Convergence theories’ might also be intrigued by the establishment of a functioning institutional setting for the decentralized enforcement of international criminal law by domestic authorities. For such a setting to materialize, domestic lawmakers rst need to ensure that their judicial authorities have jurisdiction to deal with cases whose facts transcend the national borders. The furthest they can go in doing so is to adopt the principle of universal jurisdiction.30 Second, the viability of such a decentralized institutional setting depends on the design of provisions for the initiation of prosecutions at the national level.31 These provisions will reveal in particular how independent the institutional setting is from politics. (c) Eventually, complementary to such a decentralized institutional setting, and thus a further sign of ‘convergence’ would be the facilitation of centralized enforcement by the International Criminal Court through improved vertical cooperation. As states parties are under an obligation to adopt legislation enabling them to meet their duties to cooperate with the ICC, it is the quality of this legislation, rather than its mere existence, which should be assessed with a view to ‘convergence’. In light of this, three issues—the conditions under which requests for cooperation of the ICC can be denied,32 the handling of requests for the extradition of nationals,33 as well as of

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See infra section III.1. Arts 6-8, Rome Statute. See infra section III.2. 28 This assumes that the content of substantive criminal law is highly contingent upon the self-understanding of a society. 29 This assumes that societies see immunities from criminal prosecution as crucial for the stability of state institutions. 30 See infra section IV.1 31 See infra section IV.2. 32 See infra section V.1 33 See infra section V.2. 27

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persons enjoying immunities under national law34—seem to be paradigmatic for the status of vertical cooperation, as they affect questions of national identity in a particularly intensive manner. Certainly, and by way of a caveat, it needs to be emphasized that not all of these issues, should their analysis reveal signs of ‘convergence’, will have the same signicance for each of the ‘convergence theories’. Developments towards common standards for vertical cooperation35 might be more interesting for the discourse on an emerging global administrative law than for transnational legal process, and network theorists might be particularly intrigued by progress made towards the establishment of a decentralized institutional setting for criminal prosecutions.36 In a further step, it would therefore be necessary to assess each of the following observations about signs of ‘convergence’ separately in light of each theoretical approach. To keep this article at a readable size, this further step is omitted here. Any signs of ‘convergence’ revealed in the following are therefore no more than rough indicators as to how the proponents of convergence theories might probably assess the described facts. A second caveat would be that the following observations about signs of ‘convergence’ do not ow as sweet wisdom from a look at the country studies. Rather, the ndings yielded by a comparison of the country specic analyses are all more or less equivocal, and their evaluation is certainly as much tentative as it is contingent. And thirdly, while a critical perspective on the advantages and disadvantages of ‘convergence’ would have its merits, it is beyond the scope of this article. Placing the implementation of the Rome Statute in the context of quite abstract meta-theories about the direction in which the international legal order is developing requires as a foundation some considerations about the practical importance of the implementation of the Rome Statute.37 This should be done before embarking on the comparative analysis of the mentioned issues.

II. The Signicance of Implementing the Rome Statute The implementation of the Rome Statute in domestic legal orders serves two different purposes. First, as has been mentioned, the ICC needs to rely on the cooperation of states, in particular its states parties, as it has no police force of its own which could execute its orders, collect evidence, or arrest suspected persons. Therefore, the Rome 34

See infra section V.3. See infra section V. 36 See infra section IV. 37 See infra section II. 35

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Statute stipulates a sophisticated set of duties for states parties to cooperate with the ICC. Article 86 et seq. of the Rome Statute specify these duties, in particular those relating to the arrest, surrender and transfer of suspected persons. Legislation enabling states to give effect to requests by the ICC without delay is therefore crucial. Naturally, non-party states are not bound by these duties, but the ICC might seek their voluntary cooperation. This raises the question as to which legal procedures are applicable in such a case.38 Second, the ICC will only have the capacity to try very few cases at a time. With currently three situations referred to the ICC by states and one by the Security Council, it can be anticipated that the ICC will be working to full capacity in the coming years. Therefore, the principle of complementarity plays a crucial function in enforcing the prohibition of crimes against international law.39 At the same time, complementarity offers states a means which is less intrusive to their sovereignty and more benecial to what has been termed the national ‘ownership’ of criminal trials than obligatory international jurisdiction, as is the case with the ad-hoc tribunals. Complementarity could even be called a particular mutual recognition regime. Thus, although international law does not oblige states parties to put in place legislation enabling them to conduct prosecutions and trials which meet the standard of the complimentarity principle, it would be benecial to both the ICC and to themselves if they do so. States do not have to cling to the letter of the Rome Statute, but are free to implement it in accordance with their preferences and traditions, as long as their legislation does not render them ‘unwilling or unable genuinely’ to carry out investigations and prosecutions.40 Further, non-party states may also benet from the principle of complementarity, as the Security Council might grant the ICC jurisdiction to prosecute crimes committed on their territory or because their nationals might be charged before the ICC or courts of a state party for acts committed on the territory of a state party to the Rome Statute.41

38 For a general presentation of Arts 86 et seq. of the Rome Statute cf. Bert Swart, ‘General Problems’, in Antonio Cassese, Paola Gaeta and John Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), vol. 2, 1589-1605. 39 Arts 1, 17(1)(a)(b) and 20(3), Rome Statute. 40 Art. 17(1)(a), Rome Statute. 41 On the rationality of the complementarity principle cf. further Markus Benzing, ‘The Complementarity Regime of the ICC’, 7 Max Planck Yearbook of United Nations Law (2003) 591-632.

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III. The Openness of Domestic Legal Orders to International Criminal Law 1. The Status of the Rome Statute in National Law The legal status given to the Rome Statute in the domestic legal orders of its states parties seems to be a good indicator for their general ‘openness’ towards international law, and thus an important sign of ‘convergence’. Theoretically, the domestic law of states parties can attribute to the Rome Statute any status ranging from direct applicability and superiority over domestic law to no status and effect at all. The former would represent a case of openness in its most visible form, whereas in case of the latter, recourse might still be taken to other means of ‘opening’ the domestic legal order, such as specic implementing legislation. The country studies reveal a signicant similarity among continental legal orders regarding the status and effect of the Rome Statute. Characteristic for this approach that is shared by ten of the surveyed domestic legal orders is, rst, that the Rome Statute is ranked above all national law except the constitution, and second, that its self-executing provisions are rendered directly applicable.42 However, in most of these legal orders provisions of substantive criminal law are not considered self-executing, which is due to concerns relating to the principle of legality.43 This approach is particularly widespread among states in central and Eastern Europe with relatively recent constitutions. For the purposes of this text, it shall be called the ‘constitutional superiority approach’. This approach dees a clear characterization as either dualistic or monistic. On the one hand, in some of the surveyed legal orders, international treaties are declared to be an ‘inseparable’44

42

See Shuteriqi, ‘Albania’, supra note 21, at I.; Forowicz, ‘Belgium’, supra note 21, at I.; Boteva, ‘Bulgaria’, supra note 22, at I.2.; Kivánek and Tyllová, ‘Czech Republic’, supra note 22, at I.2.; Liivoja et al., ‘Estonia’, supra note 21, at I.; Sacchi and Borelli, ‘Italy’, supra note 21, at I.; Kalnina and Paparinskis, ‘Latvia’, supra note 22, at I.1.; Vasiliev and Ogorodova, ‘Russia’, supra note 21, at I.3.; Stusek, ‘Slovenia’, supra note 22, at I.2. Germany corresponds to this model only insofar as the Rome Statute enjoys the same rank as other parliamentary acts. However, decisions by the ICC are directly applicable and even override the German constitution, see Heß et al., ‘Germany’, supra note 21, at I. 43 Shuteriqi, ‘Albania’, supra note 21, at II.2.; Forowicz, ‘Belgium’, supra note 21, at I.; Boteva, ‘Bulgaria’, supra note 22, at I.2. Cf., however, Blix-Nilsen et al., ‘Norway’, supra note 22, at II.2.c.; Vasiliev and Ogorodova, ‘Russia’, supra note 21, at I.3; and Ohisalo, ‘Finland’, supra note 21, at II.2.c.: Specic references in domestic law enable the direct application of the Rome Statute or other provisions of international law stipulating individual criminal responsibility. Nevertheless, such references raise concerns regarding the principle of legality (cf. Ohisalo, ibid.). 44 Liivoja et al., ‘Estonia’, supra note 21, at I.

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or ‘integral’45 part of the domestic legal order, formulas which might be seen as declaratory, pointing into the direction of monism. Even the Italian legal order with its strong dualist tradition46 seems to pay only lip service to dualism, as the ordine di esecuzione required for rendering international law applicable is reduced to a formality.47 On the other hand, the monist paradigm cannot explain why international law should be trumped only by the constitution.48 This nding is certainly not surprising, as it is common wisdom that legal practice is more complex than the simplicity of the monism/dualism dichotomy suggests.49 Monism and dualism are theoretical constructs that merely describe the extremes of a long, differentiated scale of possible linkages between the national and international legal orders. Somewhere near the middle of this scale, practice seems to have produced an approach that is widely shared in continental Europe. It is characterized by considerable openness towards international law, as it enables the direct application of treaties and reserves only a minimal national ordre public represented by the constitution. There are notable exceptions to this approach. Some domestic legal orders still follow the classical patterns of monism and dualism. On the one hand, the Netherlands pursue a monistic approach, giving the Rome Statute superiority over the constitution.50 On the other hand, Norway and the United Kingdom remain faithful to a strict dualist tradition in relation to international treaties. The ratication of the Rome Statute has no consequences in the internal law of both states, and implementing legislation does not enjoy a special rank.51 Finland, by contrast, opted for an internationally open variant within the dualist tradition.52 The Rome Statute was adopted by a special procedure allowing it to override the constitution,53 which also paved the way for the direct application of the Statute.54

45

Vasiliev and Ogorodova, ‘Russia’, supra note 21, at I.3. Georg Dahm, Joost Delbrück and Rüdiger Wolfrum, Völkerrecht (2nd edn, de Gruyter: Berlin, 1989), vol. I/1 at 115-116. 47 Sacchi and Borelli, ‘Italy’, supra note 21, at I. 48 This is obvious for the monist paradigm which assigns superiority to international law. But even the related monist paradigm which assigns superiority to national law cannot explain why international law should be primed just by the constitution. Cf. Ian Brownlie, Principles of Public International Law (6th edn, Oxford University Press, 2003), 32-3. 49 Cf. e.g. Benedetto Conforti, Diritto internazionale (6th edn, Editoriale Scientica: Napoli, 2002) at 284. 50 Çinar and van Niekerk, ‘Netherlands’, supra note 22, at I.2. 51 Blix-Nilsen et al., ‘Norway’, supra note 22, at I.2.; Olleson and Brubacher, ‘United Kingdom’, supra note 21, at I. 52 Jan Sundberg, ‘Finland’, 24 European Journal of Political Research (1993) 419-423. 53 Ohisalo, ‘Finland’, supra note 21, at III.3. 54 Ibid., at III.1. 46

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In sum, the spread of the ‘constitutional superiority approach’ stands for increasing ‘openness’ towards, and decreasing mistrust of international law, and can thus be seen as a sign of ‘convergence’. Furthermore, the spread of the ‘constitutional superiority approach’ reduces the explanatory value of the bequeathed dualist and monist paradigms. Increasing ‘convergence’ seems to require new theoretical models. This task, however, would be beyond the scope of this article.

2. Implementing the Core Crimes The integration of the core crimes into domestic law, nourished by the desire to make the principle of complementarity operational, has given rise to considerable legislative amendments in most of the surveyed countries,55 some of which are still under deliberation.56 This process should allow study of the ‘openness’ of domestic legal orders in two directions: In this process, domestic legal orders might prove their ‘openness’ in two respects: First, domestic legal orders might prove to be ‘vertically open’ by adopting a standard of criminal legislation equivalent to the Rome Statute. Second, national implementing legislation might lead to the emergence of equivalent standards among domestic legal orders independent of international norms (which could be called ‘horizontal openness’). ‘Equivalent standards’ should thereby not be confused with ‘identical standards’, for identical standards cannot and should not be expected to arise from efforts to implement the Rome Statute into domestic law. First, the principle of complementarity does not require the literal transposition of the core crimes into national criminal law. Rather, a state may only be considered ‘unable genuinely’ 57 to carry out investigations or prosecutions if the conduct in question is not even punishable as an ordinary crime, or if the penalty to be imposed is grossly disproportioned to the gravity of the act.58 Therefore, states have considerable leeway in the implementation of the core crimes, however desirable the full implementation of the core crimes might be politically. Second, the surveyed countries follow quite different approaches to criminal law, in particular as both common law and civil law jurisdictions are included. Those different approaches might produce different legislative solutions, as states might choose to adapt the core crimes to the system and terminology of their domestic criminal law. Therefore, equivalent, not identical standards should be considered the decisive criterion.

55

Belgium, Estonia, Germany, Netherlands, Slovenia, Spain, United Kingdom. Finland, Italy. 57 Art. 17(1)(a), Rome Statute. 58 Benzing, ‘Complementarity Regime’, supra note 41, at 617. 56

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Prior to the entry into force of the Rome Statute, most of the surveyed countries had already some legislation in place on crimes against international law. In particular, the undertaking in Article I of the Genocide Convention to prevent and punish genocide had led in all states except Norway59 to appropriate legislative amendments subsequent to the ratication of (or accession to) the Genocide Convention. Similarly, the obligation to punish grave breaches of the Geneva Conventions and the First Additional Protocol had led to domestic prohibitions of war crimes in most of the surveyed states.60 However, the prohibitions of war crimes contained in Article 8 of the Rome Statute go beyond the scope of the grave breaches provisions.61 The most signicant lacuna existed with respect to crimes against humanity. As there was no single international instrument prior to the Rome Statute stipulating the duty to prevent and punish these crimes, most of the surveyed states had no or only insufcient legislation in place covering the crimes within the scope of Article 7 of the Rome Statute as international crimes.62 Given these discrepancies between the Rome Statute and national criminal law, all but two of the surveyed countries which are also states parties considered it necessary to update their criminal law.63 Different approaches were chosen for these updates. In most countries the existing criminal code was (or is about to be) amended, while three countries created a new law.64 In Germany, the separate law is intended to underline the signicance of prosecuting crimes against international law. In contrast, Belgium abolished a previous separate act on grave breaches of international humanitarian law and integrated the core crimes into its criminal code, perhaps with the ulterior motive of reducing the signicance of this controversial act.65 Regarding the question of whether to adopt a more literal approach or to use more leeway in integrating the core crimes into domestic law, it might perhaps go against some standard stereotypes that there are both civil law and common law jurisdictions, and both more and less internationally 59

Blix-Nilsen et al., ‘Norway’, supra note 22, at II.2.a. Albania, Belgium, Bulgaria, Czech Republic, Finland, Netherlands, Norway, Russia, Slovenia, United Kingdom. 61 This concerns in particular the criminalization of violations of international humanitarian law in noninternational armed conicts in Article 8(2)(c) to (f). The crimes listed in Article 8(2)(c) and (e) have only recently been recognized as crimes under customary international law, and the denition contained in Article 8(2)(f) is broader than the one contained in Article 1(1) of the Second Additional Protocol. Cf. Michael Bothe, ‘War Crimes’, in Antonio Cassese, Paola Gaeta and John Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), vol. 1, 379-426 at 417-420. 62 Exception: Albania, see Shuteriqi, ‘Albania’, supra note 21, at II.2. 63 The exceptions are Albania and Bulgaria. 64 Germany, Netherlands, United Kingdom. 65 Forowicz, ‘Belgium’, supra note 21, at I. 60

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open jurisdictions which opted for a relatively literal transposition.66 More leeway was used in Estonia, Finland and Germany, which chose to establish coherence between the core crimes and the characteristic traits of their criminal codes and doctrine. This implies, rst, a preference for denitions drafted in a more general, abstract manner. Further, Finland and Germany chose to restructure the list of war crimes according to the different legally protected interests,67 and subdivided the crimes into regular, less grave and aggravated forms of commission, a pattern familiar to their criminal codes.68 This careful integration into the structure of domestic criminal law does not only constitute an interesting instance of regulatory ‘convergence’. More practically, it might also facilitate the application of those provisions by the domestic judiciary, as it strips them somewhat of their ‘exceptional’ character. Future practice will show whether this comes true. Among the core crimes, the various domestic provisions on the crime of genocide feature the highest degree of equivalence. This certainly needs to be attributed to the existence of a concise treaty denition which has remained unchanged for decades. Only a few states decided to vary the denition of the Genocide Convention and to extend the range of protected groups.69 In contrast to genocide, specic provisions on crimes against humanity are rare in states without implementing legislation for the above-mentioned reasons.70 In only a few cases, conduct prohibited under Article 7 of the Rome Statute had been criminalized under domestic criminal law before implementation of the Rome Statute, mostly conduct which is prohibited under international conventions like those against torture or apartheid.71 Crimes against humanity might be punished as ‘ordinary crimes’ (e.g. murder, rape), yet it is often stated that this would hardly reect the specic political signicance of those crimes.72 Article 7(1) of the Rome Statute expresses this signicance by requiring a ‘widespread or systematic attack against any civilian population’. These criteria, which reect the jurisprudence of the ICTY and the Statute of the

66

Those states are Belgium, Italy, the Netherlands, and the United Kingdom. For a similar observation cf. Turns, ‘Aspects of National Implementation’, supra note 3, at 337. 67 Ohisalo, ‘Finland’, supra note 21, at II.2.c.; Heß et al., ‘Germany’, supra note 21, at II.2. Note that the concrete concepts of legally protected intersts differ considerably. 68 Ohisalo, ‘Finland’, supra note 21, at II.2.c.; Heß et al., ‘Germany’, supra note 21, at II.2.. 69 Liivoja et al., ‘Estonia’, supra note 21, at II.2.; Ohisalo, ‘Finland’, supra note 21, at II.2.a.; Kalnina and Paparinskis, ‘Latvia’, supra note 22, at II.2.a. 70 Supra note 62 and accompanying text. 71 Cf. Boteva, ‘Bulgaria’, supra note 22, at II.2.b.; Kivánek and Tyllová, ‘Czech Republic’, supra note 22, at II.2.b.; and, with considerable limitations, Vasiliev and Ogorodova, ‘Russia’, supra note 21, at II.2. 72 Exemplary for the change in attitude in this respect: Ohisalo, ‘Finland’, supra note 21, at II.2.b.

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ICTR,73 might have been controversial at the Rome Conference,74 but meanwhile have found their way into most of the implementing legislation or legislative projects under scrutiny.75 Three states decided not to implement Article 7(2)(a) of the Rome Statute, which species the term ‘attack’ as requiring the commission of the crime in furtherance of a state or organizational policy.76 Apart from this threshold provision, the different new provisions on crimes against humanity yield a picture whose micro structure allows to discern quite heterogeneous strokes of the brush, which on the whole amount to a rather homogeneous impression of largely equivalent standards. Most of the surveyed countries had legislation on war crimes before 1998,77 even if other crimes against international law were, or still are, not punishable under domestic law.78 Only in Germany it was considered sufcient to prosecute conduct amounting to a war crime as an ‘ordinary’ crime (e.g. murder, manslaughter etc.).79 Nevertheless, implementation of the Rome Statute was used as an opportunity to update and improve existing provisions. The new provisions or draft provisions on war crimes show a clear trend towards breaking down the distinction between crimes committed in international and non-international armed conicts. Although this distinction has been maintained in the Rome Statute, the jurisprudence of the ad hoc tribunals has paved the way for this trend in the implementing legislation.80 Only the states with the most literal approach to implementation, the Netherlands and the United Kingdom, keep crimes committed in international and non-international armed conicts clearly separated. In the Netherlands it was argued that maintaining the distinction would be more in line with the current state of international law.81 In some of the surveyed countries, the denitions of war crimes are not self-contained, but rely on references to international law, sometimes only with respect to specic elements of international 73 Prosecutor v. Tadi, Case No. IT-94-1, ICTY Trial Chamber, Judgment (7 May 1997), para. 648; Art. 3 ICTR Statute, UN Security Council Resolution 955 (8 November 1994), Annex I. 74 Rodney Dixon, ‘Article 7’, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Nomos, Baden-Baden 1999) 121-129 at marginal notes 3-4. 75 Cf. Forowicz, ‘Belgium’, supra note 21, at II.2.; Liivoja et al., ‘Estonia’, supra note 21, at II.2.; Heß et al., ‘Germany’, supra note 21, at II.2.; Sacchi and Borelli, ‘Italy’, supra note 21, at II.2.; Çinar and van Niekerk, ‘Netherlands’, supra note 22, at II.2.b.; Olleson and Brubacher, ‘United Kingdom’, supra note 21, at II.2. 76 Liivoja et al., ‘Estonia’, supra note 21, at II.2.; Heß et al., ‘Germany’, supra note 21, at II.2.; Estévez, ‘Spain’, supra note 22, at II.2.b. 77 Supra note 60 and accompanying text. 78 Cf. Blix-Nilsen et al., ‘Norway’, supra note 22, at II.2.c. 79 Heß et al., ‘Germany’, supra note 21, at II.2. 80 Prosecutor v. Tadi, Case No. IT-94-1, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal (2 October 1995), paras 83 and 128; cf. also Prosecutor v. Akayesu, Case No. ICTR96-4, ICTR Trial Chamber, Judgment (2 September 1998), paras 608-609, 616. 81 Çinar and van Niekerk, ‘Netherlands’, supra note 22, at II.2.b.

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humanitarian law like the denition of protected persons,82 sometimes in a comprehensive manner.83 With respect to the latter, the authors of the respective analyses raised concerns whether this would be in conformity with the principle of legality.84 The qualication contained in Article 8(1) of the Rome Statute, according to which the Court has jurisdiction over war crimes ‘in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’, was not retained by most states, as it had been drafted specically for the purposes of the ICC.85 It has the purpose of discouraging the Prosecutor from investigating single, isolated violations of international humanitarian law by members of groups to a conict which generally respect international humanitarian law and can therefore be expected to provide for appropriate sanctions.86 On the whole, the changes to domestic criminal law induced by efforts to implement the core crimes follow certain trends: The ‘ordinary crimes’ approach is on the retreat and specic provisions have been (or are) adopted for each core crime, the various denitions of the crime of genocide even come close to uniformity, and the distinction between war crimes committed in international and non-international armed conicts shows a tendency towards disappearing. It is difcult to ascertain whether these trends reect vertical or horizontal openness. It is not unlikely that both aspects play a role, as governments have drawn on both the Rome Statute and the legislation of other states during the drafting process.87 At any rate, equivalent standards have emerged on a number of issues. They might be the rst signs of ‘convergence’, while the surveyed (draft) legislations with all their different strengths and weaknesses still show considerable variance.

IV. Institutional Setting for Decentralized Enforcement ‘Convergence’ of legal orders in the eld of international criminal law does not need to be a one-way movement to the detriment of domestic legal orders as might appear when considering the openness of domestic legal orders towards transnational inu82

Boteva, ‘Bulgaria’, supra note 22, at II.2.c. Blix-Nilsen et al., ‘Norway’, supra note 22, at II.2.c.; Ohisalo, ‘Finland’, supra note 21, at II.2.c. (catch-all clause); Vasiliev and Ogorodova, ‘Russia’, supra note 21, at II.2. (interdiction of means and methods of warfare prohibited by international law). 84 Ohisalo, ‘Finland’, supra note 21, at II.2.c.; Vasiliev and Ogorodova, ‘Russia’, supra note 21, at II.2. 85 Forowicz, ‘Belgium’, supra note 21, at II.2.; Liivoja et al., ‘Estonia’, supra note 21, at II.2. 86 William J. Fenrick, ‘Article 8’, in Triffterer, Commentary, supra note 74, 180-187 at marginal note 4. 87 e.g. Ohisalo, ‘Finland’, supra note 21, at II.3.a. 83

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ences. Rather, domestic authorities and legislation play a crucial role in the establishment of a decentralized institutional setting for the enforcement of international criminal law in accordance with shared standards. Such a setting certainnly displays signicant signs of ‘convergence’. It would be comparable to the idea of the erga omnes character of human rights provisions, which has also greatly inspired ‘convergence theories’,88 even though hardly any institutional arrangements for decentralized enforcement independent of the place of the violation and the nationality of the persons involved have been put in place.89 In order to become a reality, such an institutional setting requires in the rst place domestic implementation of the principle of universal jurisdiction (1.). Universal jurisdiction extends the competence of domestic authorities for the prosecution of crimes against international law in a way similar to the erga omnes character of human rights provisions. Further, a smoothly running institutional setting requires that domestic authorities actually make use of their universal competence, and that their actions are in harmony with the actions of other national or international authorities. These aspects depend on the design of domestic procedures for the initiation of proceedings (2.).

1. Universal Jurisdiction As a general rule in international law, the criminal jurisdiction of domestic courts is conned to cases where the crime has been committed on the territory, by a national or against a national, or against a vital interest of the respective state.90 Beyond this, the extent to which certain crimes are subject to universal jurisdiction is disputed. Universal jurisdiction denotes the right of states to exercise jurisdiction over a crime in the absence of any of the aforementioned jurisdictional bases. It is safe to assume this right with respect to crimes for which international treaties stipulate the obligation to extradite or prosecute suspected persons.91 Such obligations exists, for example, for grave breaches of the Geneva Conventions and the First Additional Protocol. However, Article 8 of the Rome Statute on war crimes extends the criminalization of violations of international humanitarian law beyond the scope of the grave breaches provisions,92 88

Cf. Tomuschat, ‘General Course’, supra note 10, at 82-90. The US Alien Torts Claims Act is the only example, cf. Christian Tomuschat, Human Rights (Oxford University Press, 2003) at 311-12. 90 Cf. Brownlie, Principles, supra note 48, at 299-303. 91 On the distinction between universal jurisdiction, which is a right but not a duty to prosecute, and the obligation aut dedere aut iudicare cf. Bruce Broomhall, ‘Towards the Development of an Effective System of Universal Jurisdiction for Crimes Under International Law’, 35 New England Law Review (2001) 399420 at 401. 92 Cf. supra note 61. 89

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and for crimes against humanity and genocide there is no treaty obligation to extradite or prosecute. This raises the question whether and to what extent customary international law permits the exercise of universal jurisdiction for the core crimes. In the Arrest Warrant Case, the International Court of Justice did not decide the question of universal jurisdiction for crimes against humanity.93 In scholarly writing, the view that the core crimes are subject to universal jurisdiction is both enthusiastically endorsed94 as well as rejected.95 Similar disputes raise the question whether the establishment of the ICC will foster the emergence of universal jurisdiction for the core crimes as a customary rule.96 The ndings of the country studies cast light on this issue by allowing insights into how states perceive this point.97 A nding that universal jurisdiction is more and more accepted would point to increasing ‘convergence’. The current status of the law of the surveyed countries might not give reason for euphoria, but some progress is clearly visible. The approaches taken in the surveyed countries can be categorized into three groups: A group of ve countries only grants jurisdiction to its courts insofar as international treaties stipulate an obligation to extradite or prosecute.98 This is tantamount to rejecting ‘real’ universal jurisdiction, which is understood as a right, but not a duty to conduct criminal investigations.99 Nevertheless, in eight countries the judiciary has been (or will be) empowered to proceed under the universality principle.100 Some of them, however, mitigate the impact of the universality principle by requiring the presence of the suspected person on their ter-

93

Case concerning the Arrest warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), ICJ Reports (2002) 3. See, however, the dissenting opinion of Judge ad hoc Van den Wyngaert, ibid., esp. at para. 40-67. 94 E.g. Theodore Meron, International Criminalization of Internal Atrocities, in id., War Crimes Law Comes of Age (Oxford University Press, 1998) 228-261 at 249-53; see also M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd edn, Kluwer: The Hague, 1999) at 228, arguing that there is an obligation to prosecute or extradite with respect to crimes against humanity. 95 Henry Kissinger, ‘The Pitfalls of Universal Jurisdiction’, 80 Foreign Affairs (2001) 86-96. For a nuanced discussion of the problems which universal jurisdiction involves and the different views presented cf. Robert Cryer, Prosecuting International Crimes (Cambridge University Press, 2005) at 79-101. 96 In the afrmative Louise Arbour, ‘Will the ICC Have an Impact on Universal Jurisdiction?’, 1 Journal of International Criminal Justice (2003) 585-588; in the negative Gabriel Bottini, ‘Universal Jurisdiction After the Creation of the International Criminal Court’, 36 New York University Journal of International Law and Politics (2004) 503-562. 97 The circularity of the material and psychological elements of custom makes it redundand to ask whether the arrogation of universal jurisdiction in domestic criminal laws constitutes state practice or opinio iuris. Cf. Martti Koskenniemi, From Apology to Utopia (2nd edn, Cambridge University Press, 2005) at 410-438. 98 Those include Belgium, Italy (current law), Latvia, Russia and the UK. 99 Cf. Broomhall, ‘Effective System of Universal Jurisdiction’, supra note 91. 100 Bulgaria, Czech Republic, Estonia, Finland, Germany, Italy (draft), the Netherlands, and Slovenia.

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ritory as a minimum link between them and the crime.101 Others include a subsidiarity clause and make the exercise of universal jurisdiction contingent upon there being no state with a closer jurisdictional link or an international tribunal willing to take up the case.102 Both the presence requirement and the subsidiarity clause might be on the way towards becoming customary international law. This is demonstrated, for example, by their endorsement in a recent resolution of the Institut de droit international.103 Estonia and Finland take into account that the leeway they used in implementing the core crimes might lead to discrepancies between crimes in domestic and international law.104 Therefore, they limit the scope of universal jurisdiction to acts for which criminal liability arises from international treaties (including the Rome Statute).105 Anticipating the practical problems this approach involves for domestic judges, which need to assess the acts under international law in order to nd out whether they have jurisdiction, Finland produced a government decree listing the international treaty provisions which fall within that category. Finally, Albania is the only remaining state where jurisdiction is limited to the nationality, personality and protective principles.106 All in all, implementing legislation has certainly provided some impetus to the idea of universal jurisdiction. However, the matter still seems to be in progress and the frequent adoption of subsidiarity clauses and presence requirements show the direction into which customary law is developing.

2. Initiating Proceedings at the National Level While the implementation of universal jurisdiction is a necessary condition for smoothly running international criminal law machinery, it is not a sufcient one. First, states need to ensure that proceedings based on universal jurisdiction respect the interests of states with territorial or personal jurisdiction (whether or not the universality principle in customary international law is understood as being subsidiary to other jurisdictional bases), as well as those of the ICC. Second, governments, including judicial authorities, would not be well advised if they engaged in proceedings which involve high political 101

The Netherlands, Slovenia. Spanish jurisprudence requires some nexus to the national interest of Spain, cf. Estévez, ‘Spain’, supra note 22, at II.6, note 37. Only Belgian law (which does not contain the universality principle) allows for trials in absentia (Forowicz, ‘Belgium’, supra note 21, at II.6.). 102 Italy (draft), the Netherlands, Spain. 103 Institut de droit international, Resolution on Universal Jurisdiction with Regard to the Crime of Genocide, Crimes against Humanity and War Crimes, adopted at the Krakow Session in 2005, para. 3(b–d), available at <www.idi-iil.org/idiE/resolutionsE/2005_kra_03_en.pdf> (last access 23 April 2007). 104 Cf. supra section III.2. 105 Liivoja et al., ‘Estonia’, supra note 21, at II.1.; Ohisalo, ‘Finland’, supra note 21, at II.1. 106 Shuteriqi, ‘Albania’, supra note 21, at II.1.

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risks and might seriously damage their external relations. Further, prominent failures to bring perpetrators to justice might mitigate or even obliterate the deterrent effect of the entire machinery. Proceedings with little realistic prospect of eventual conviction should therefore be avoided. On the other hand, merely symbolic implementations of universal jurisdiction, or the exercise of universal jurisdiction only in cases against nationals of weak states would likewise discredit decentralized enforcement. The rules relating to the initiation of proceedings on the national level therefore need to nd a workable middle ground. If they accommodate the mentioned diverging interests in a sustainable manner, they can be expected to increase the viability of decentralized enforcement and should therefore be taken as a sign of ‘convergence’. The country studies reveal a pattern of roughly three different ways in which countries balance these diverging interests. First, certain states from central and Eastern Europe, follow a non-discretionary approach even with respect to the core crimes.107 However, Slovenia is the only country among them where both universal jurisdiction and the core crimes have been fully implemented.108 In all states, the decision of the prosecutor is subject to review.109 Belgium is a special case in that its new law, by which the notorious law introducing universal jurisdiction that led to the Arrest Warrant Case was abrogated, species four grounds on which complaints for alleged core crimes violations might be rejected. The decision is subject to judicial review, with the exception of the ground of forum non conveniens (which corresponds to the idea of subsidiarity).110 Second, the law of many countries which usually follow a non-discretionary approach regarding the opening of investigations and prosecutions provides for exceptions to this approach which cover the core crimes.111 Thus, in Finland and Italy, proceedings based on the universality principle require the consent of the General Prosecutor or Minister of Justice, respectively.112 In Spain and Estonia, the discretion lies with the competent prosecutor.113 In Germany, the prosecutor enjoys discretion under certain specied circumstances only, which reect the subsidiary nature of universal jurisdiction, as well as the presence requirement referred to above. Only Estonian law provides for judicial review of the decision of the prosecutor.114 The third approach is found in states which, as a rule, grant 107

Albania, Bulgaria, Czech Republic, Russia, Slovenia. Cf. supra sections III.2. and IV.1. 109 In the Czech Republic, there is no judicial review, but only review within the prosecutorial hierarchy, cf. Kivánek and Tyllová, ‘Czech Republic’, supra note 22, at II.6. 110 Forowicz, ‘Belgium’, supra note 21, at II.6. 111 Estonia, Finland, Germany, Spain, Italy. 112 Ohisalo, ‘Finland’, supra note 21, at II.1.; Sacchi and Borelli, ‘Italy’, supra note 21, at II.6. 113 Liivoja et al., ‘Estonia’, supra note 21, at II.6.; Estévez, ‘Spain’, supra note 22, at II.6. 114 Liivoja et al., ibid. 108

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unfettered discretion to the Prosecution to decide whether to proceed or not.115 The decision is always subject to judicial review or appeal.116 Overall, the surveyed provisions on the initiation of proceedings disclose a high degree of political sensitivity. They seem to ensure that, in practice, testing of the provisions allowing exercise of universal jurisdiction will occur relatively infrequently. Taken together with the generally careful approach to the exercise of universal jurisdiction, the current domestic law of most surveyed countries does not seem to make them prone to judicial (or civil society) activism, to say the least. Therefore, doubts might arise as to whether the current situation shows signs of ‘convergence’. Nevertheless, the symbolic value of the adoption of the universality principle in a considerable number of domestic legal orders should not be underestimated. It underlines the responsibility of states to ght against impunity, even if it is not in the immediate self-interest of their populations. The erga omnes character of human rights has been eagerly tendered as evidence by convergence theorists even in the absence of any institutional mechanism.117 The to-date mostly symbolic means of institutionalizing decentralized enforcement of international criminal law might therefore be seen as a necessary rst step on a long road towards its effective functioning. Further, the elaborate procedures adopted in some countries which ensure reasoned, transparent prosecutorial decisions as well as their independent review seem to be designed not only to provide greater satisfaction to complainants than unchallengeable decisions based on unfettered executive discretion might do, but also to provide for transparent information ows among domestic and international judicial authorities. The latter is an important building block of a decentralized institutional setting for the enforcement of international criminal law. Although such a setting has not been fully realized at present, there are promising developments into this direction. First signs of ‘convergence’ are thus visible.

V. Institutional Setting for Centralized Enforcement While the decentralized enforcement of international criminal law is carried out by domestic authorities, the ICC is competent for centralized enforcement. As has been 115

The Netherlands, Norway, Latvia and the UK. Note that in the UK, there is a requirement of the consent of the Attorney-General in some circumstances. 116 Kalnina and Paparinskis, ‘Latvia’, supra note 22, at II.6.; Çinar and van Niekerk, ‘Netherlands’, supra note 22, at II.6.; Blix-Nilsen et al., ‘Norway’, supra note 22, at II.6.; Olleson and Brubacher, ‘United Kingdom’, supra note 21, at II.6. 117 Supra note 89 and accompanying text.

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emphasized above,118 enforcement by the ICC is fully dependent on the cooperation of domestic authorities. Aware of the risks involved in this dependency, the drafters of the Rome Statute stipulated obligations of cooperation with the ICC which go considerably beyond those normally undertaken in treaties on extradition and judicial assistance in criminal matters. In particular, the reasons for denying assistance are limited to cases where the execution of a request is prohibited by the law of the requested state ‘on the basis of an existing fundamental legal principle of general application’, or would compromise national security.119 Common limitations to inter-state extradition such as the requirement of double criminal liability, exceptions for political crimes and for nationals were waived with respect to surrender to the ICC. Also, the Rome Statute does not recognize immunities attached to the ofcial capacity of a person.120 These innovations of the Rome Statute alone could be taken as signicant signs of ‘convergence’. As they touch upon sensitive national interests, it should be worthwhile inquiring to what extent national legal orders have been brought into conformity with them and thereby contribute to further ‘convergence’. At the time of writing, all but two of the surveyed states which are states parties to the Rome Statute have adopted specic legislation to meet their obligations to cooperate with the ICC.121 Three of them rely to a large extent on the direct application of the Rome Statute.122 In case the ICC should address a request for cooperation to one of the surveyed non-party states, their provisions on judicial assistance between states would be applicable.123

1. Reasons for Denying a Request for Cooperation The legal situation in Albania, as one of the states which has not yet adopted specic implementing legislation, reects the ‘pre-convergence’ state of judicial assistance in criminal matters and allows study of the traditional obstacles to cooperation in criminal matters which the Rome Statute is supposed to eliminate, such as the exception for political offences.124 Compared to this, the law of the Russian Federation denes the grounds for denying requests for cooperation more narrowly: It only exceeds the 118

Supra section II. Rome Statute, Art. 93(3) and (4). 120 Rome Statute, Art. 27. 121 The exceptions are Albania and Italy. Note that legislation is under deliberation in Italy. 122 Cf. Ohisalo, ‘Finland’, supra note 21, at III.1.; Estévez, ‘Spain’, supra note 22, at III.1. Estonia relies both on existing provisions on judicial assistance and the Rome Statute, cf. Liivoja et al., ‘Estonia’, supra note 21, at III.1. 123 Kivánek and Tyllová, ‘Czech Republic’, supra note 22, at III.1.a.; Vasiliev and Ogorodova, ‘Russia’, supra note 21, at III.1. 124 Shuteriqi, ‘Albania’, supra note 21, at III.3. 119

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scope of the grounds for denying cooperation as dened by the Rome Statute insofar as requests which contravene Russian law can be denied, even if they do not reect fundamental legal principles of general application, as required by the Rome Statute.125 As Russia is not obliged by international law to narrow its reasons for denying cooperation, this fact is remarkable. In the states parties which have adopted implementing legislation, the traditional obstacles have been generally reduced in order to bring domestic law into conformity with the obligations under the Rome Statute. Of the two grounds for denying cooperation permitted under the Rome Statute, states rank national security higher than the protection of fundamental legal principles.126 In fact, in all states parties with implementing legislation, national security is seen as a reason for denying cooperation.127 Italy’s draft legislation goes even further than that by including ‘essential interests’ as a reason for denial.128 By contrast, only four states have legislation specifying what is to be understood as fundamental legal principles as a ground for refusing cooperation.129 In Bulgaria and Estonia, far-reaching reasons like public order or other legally protected interests might be invoked. However, as the Rome Statute takes precedence over national law in both states, these grounds are inapplicable insofar as they are in conict with the Rome Statute.130 Similarly, Germany chose to deny requests whenever the requested information would be inadmissible before German courts.131 As German criminal procedure does not accept the ‘fruit of the poisonous tree’ doctrine, it could be said that evidence is only inadmissible if it would otherwise contravene fundamental legal principles. Norwegian law requires that the request does not violate domestic law.132 In Finland and Spain, the direct applicability of the provisions of the Rome Statute enables authorities to also invoke ‘fundamental legal principles’, without their being specied in domestic law.133 On the whole, the states parties under consideration have made modest provision in their implementing legislation for using their leeway to deny requests by the ICC. It could, however, be deplored that a number of states rely on the Rome Statute tak125

Cf. Rome Statute, Art. 93(3). Rome Statute, Art. 93(3) and (4). 127 Finnish law puts the strongest limitations on this exception, cf. Ohisalo, ‘Finland’, supra note 21, at III.1. 128 Sacchi and Borelli, ‘Italy’, supra note 21, at III.2. 129 Cf. Rome Statute, Art. 93(3). 130 Boteva, ‘Bulgaria’, supra note 22, at III.3.b. and III.4.a.; Liivoja et al., ‘Estonia’, supra note 21, at III.2. 131 Heß et al., ‘Germany’, supra note 21, at III.2. 132 Blix-Nilsen et al., ‘Norway’, supra note 22, at III.3.b. 133 Ohisalo, ‘Finland’, supra note 21, at III.1.; Estévez, ‘Spain’, supra note 22, at III.3. Note, however, that Finnish authorities might only consult with the ICC and cannot eventually deny the request. 126

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ing precedence over their national law and therefore leaves open what they consider ‘fundamental legal principles’. This will confront domestic courts and authorities with delicate questions that might delay requests for cooperation, which could be avoided by generic denitions or enumerative lists specifying what is to be understood as ‘fundamental legal principles’.

2. Surrender of Nationals Prior to any efforts of implementing the Rome Statute, only Dutch and British law were not opposed in principal to the extradition of nationals,134 and the Albanian, Estonian and Italian constitutions permitted extradition if required by international law.135 In all other states, the constitution136 or statutory law137 prohibited the extradition of nationals. Now that most of the surveyed states have adopted implementing legislation, the situation has changed significantly. Two approaches can be distinguished: First, Bulgaria and Latvia follow the example set by Albania, Estonia and Italy and now permit extradition (surrender) of nationals if an international treaty so requires.138 Second, Belgium, Germany, Norway and Slovenia implemented exceptions for international institutions like the ICC, while leaving the prohibition of extradition to foreign states intact.139 Finland can also be considered to follow this approach, although it implemented this solution in a technically different and unique way.140 Remarkably, no state seems to rely on the semantic distinction between surrender and extradition which has been made in the

134

Olleson and Brubacher, ‘United Kingdom’, supra note 21, at III.3.; Çinar and van Niekerk, ‘Netherlands’, supra note 22, at III.4.c.(ii); cf. also Albertus Swart, Nederlands Uitleveringsrecht (Tjeenk Willink: Zwolle, 1987) at 67-68. 135 Shuteriqi, ‘Albania’, supra note 21, at III.3.; Liivoja et al., ‘Estonia’, supra note 21, at III.3.; Sacchi and Borelli, ‘Italy’, supra note 21, at III.3. 136 Cf. Ohisalo, ‘Finland’, supra note 21, at III.3.; Kalnina and Paparinskis, ‘Latvia’, supra note 22, at III.4.c.(ii); Boteva, ‘Bulgaria’, supra note 22, at I.2. and III.4.c.(ii); Heß et al., ‘Germany’, supra note 21, at III.3.f.; Stusek, ‘Slovenia’, supra note 22, at III.1.a. and III.4.c.(ii); Kivánek and Tyllová, ‘Czech Republic’, supra note 22, at III.4.c.(ii); Vasiliev and Ogorodova, ‘Russia’, supra note 21, at III.4. 137 Cf. Forowicz, ‘Belgium’, supra note 21, at III.3.; Blix-Nilsen et al., ‘Norway’, supra note 22, at III.4.c.(ii). 138 Boteva, ‘Bulgaria’, supra note 22, at I.2. and III.4.c.(ii); Kalnina and Paparinskis, ‘Latvia’, supra note 22, at III.4.c.(ii). 139 Forowicz, ‘Belgium’, supra note 21, at III.3.; Heß et al., ‘Germany’, supra note 21, at III.3.f.; Blix-Nilsen et al., ‘Norway’, supra note 22, at III.4.c.(ii); Stusek, ‘Slovenia’, supra note 22, at III.1.a. and III.4.c.(ii). 140 Ohisalo, ‘Finland’, supra note 21, at III.3.: Due to a special ratication procedure, the Rome Statute takes precedence even over the constitutional prohibition of extraditing nationals.

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Rome Statute.141 States preferred to choose the safer solution and amended their constitution.142 Overall, most states have faithfully implemented the sensitive aspects of their cooperation duties under examination, thus departing considerably from the traditional framework for cooperation between states. This corroborates the sign of ‘convergence’ which was set by the inclusion of these cooperation duties in the Rome Statute. Perhaps it does not come as a surprise that the cooperation regime of the Rome Statute has been accepted with ease, as the framework decision on the European Arrest Warrant stipulates similar limitations for refusing requests for cooperation in criminal matters and extradition.143

3. Immunities In almost all surveyed states, national law provides for immunity from criminal prosecution for certain ofcials,144 which possess no relevance for the ICC and would therefore not prevent the court from requests for surrender.145 As long as such immunities are subject to a waiver, which is the rule rather than the exception, requests by the ICC for the surrender of a bearer of such immunities can easily be met. Difculties may only arise if there is no waiver, or if the waiving procedure is considerably burdensome. Therefore, the focus will be on immunities under national law that cannot be waived so easily. Should the implementation of the Rome Statute make a difference here, it would have to be considered a sign of ‘convergence’. No constitutional amendments were made in the surveyed states in order to introduce waivers for immunities which cannot be waived, or only with difculty. Instead, two different techniques were applied. Two states decided to rely on the Rome Statute taking precedence over national law, including constitutional immunities for national ofcials.146 In three states, it was argued that national law should be interpreted in such a 141

Rome Statute, Art. 102. Note, however, that the distinction between extradition and surrender could be fruitful in Russia, cf. Vasiliev and Ogorodova, ‘Russia’, supra note 21, at III.4. 142 Cf. Boteva, ‘Bulgaria’, supra note 22, at I.2.; Heß et al., ‘Germany’, supra note 21, at III.3.f.; Ohisalo, ‘Finland’, supra note 21, at III.3. (amendment not affecting the text of the constitution); Kalnina and Paparinskis, ‘Latvia’, supra note 22, at III.4.c.(ii); Stusek, ‘Slovenia’, supra note 22, at III.1.a. 143 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ L 190 of 18 July 2002. 144 The only exception is the UK, where no immunities exist, cf. Olleson and Brubacher, ‘United Kingdom’, supra note 21, at II.4. 145 Rome Statute, Art. 27. 146 Forowicz, ‘Belgium’, supra note 21, at II.4. (immunity of the King and of MPs for opinions expressed and votes cast in the exercise of their duties); Çinar and van Niekerk, ‘Netherlands’, supra note 22, at

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way as to make it compatible with the Rome Statute. Thus, in Finland the term ‘crimes against humanity’, for which the President may be prosecuted, is read as corresponding to the core crimes of the Rome Statute, and in Norway the immunities of the King are considered inapplicable in grave cases like crimes against international law.147 In Italy, the question was considered whether immunities would apply at all in grave cases such as crimes against international law, even though they can be waived.148 Only few immunities that cannot be waived persist in the surveyed states parties: Those of the Bulgarian President and Vice-President, and those of the King of Spain.149 These practically insignicant, but perhaps symbolically important decits in national implementing legislation show that ‘convergence’ has indeed some limits. However, due to the fact that most immunities can be waived, no major legislative amendments were necessary, and only practice will show the true extent of ‘convergence’.

VI. Conclusion Overall, this comparison of the country specic analyses yields the impression that developments in the eld of international criminal law can indeed give some impetus to ‘convergence theories’. Most encouraging is certainly the increasing acceptance of the universality principle, which stands on an increasingly rm ground. States parties have also taken the necessary steps in order to enable their authorities to cooperate with the ICC as required. Signs of convergence are rarer in the eld of material criminal law, although equivalent standards are about to emerge in respect of many issues. Participants in domestic legislative processes seem to have lost much fear of adopting international law standards or developing common standards in a decentralized manner. It can only be hoped that those responsible for criminal prosecutions will be equally fearless of bringing cases before domestic courts whenever the opportunity may arise. Naturally, the few countries surveyed and the small number of issue areas selected for this overview do not allow for a generalization of these conclusions. Rather, they should be seen as careful indicators for the tendency into which international law is developing. This question, as well as the question whether Europe is indeed a forerunner in respect of ‘convergence’, require further research covering different areas of international law as well as different regions of the world, to which the present article might make a small contribution. II.4.b. (immunity of the monarch). 147 Ohisalo, ‘Finland’, supra note 21, at II.4.; Blix-Nilsen et al., ‘Norway’, supra note 22, at III.4.c.(i). 148 Sacchi and Borelli, ‘Italy’, supra note 21, at III.3. 149 Boteva, ‘Bulgaria’, supra note 22, at III.4.c.(i); Estévez, ‘Spain’, supra note 22, at II.4.b.

Implementation of the Rome Statute in Albania Mirela Shuteriqi*

I. Introduction Albania signed the Rome Statute of the International Criminal Court on 18 July 1998.1 Despite being one of the rst countries to sign, Albania did not ratify the Statute until 31 January 2003. Ratication was contingent upon the approval of the Parliament,2 which took place on 23 December 2002. However, to date, the Parliament has passed no implementing legislation. The delay in ratication could be attributed to the fact that the Albanian Constitutional Court had to rule on the compatibility of the Rome Statute with the Constitution of the Republic of Albania3 prior to ratication. Two specic issues arose before the Constitutional Court: namely, the relationship between the Rome Statute and the constitutional provisions on immunities, and also the effects of the constitutional provision incorporating the ne bis in idem principle.4 In its relatively brief decision of 23 September 2002, the Court found the Rome Statute to be compatible with the Consti*

LL.M. (University of Utrecht); Advocacy and Legal Ofcer for South-Eastern Europe, Terre des hommes Foundation. 1 Rome Statute of the International Criminal Court, Rome, 17 July 1998, in force 1 July 2000, 2187 United Nations Treaty Series 90; 37 International Legal Materials 999 (1998) (hereinafter also ‘RS’). 2 Ligji mbi ‘Ratikimin e Statutit te Romes per “Gjykaten Nderkombetare Penale”’ (Law ‘On the Ratication of the “Rome Statute of the International Criminal Court”’), Law no. 8984, 23 November 2002, Fletore Zyrtare (Ofcial Journal), Nr. 1/2003. 3 Kushtetuta e Republikës së Shqipërisë (Constitution of the Republic of Albania), promulgated on 28 November 1998 (hereinafter ‘Constitution’). For an English translation, see the website of the Albanian Parliament, <www.parlament.al/eng/dokumenti.asp?id=1117&kujam=Constitution> (visited 24 February 2006). See, in particular, Art. 131 (b) of the Constitution, which states that ‘[t]he Constitutional Court decides on the compatibility of international agreements with the Constitution, prior to their ratication.’ (All translations from Albanian to English provided in the present article are by the author.) 4 These issues and others regarding the Albanian legal order will be considered in detail in the next sections.

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tution.5 The decision enabled the government to present the Law on the Ratication of the Rome Statute to the Parliament, as required by the ratication procedure set out in Article 121 of the Constitution. When attempting to analyze the status of the Rome Statute within the Albanian legal order, the logical starting point is the Constitution itself. Article 4(2) establishes that ‘[t]he Constitution is the highest law in the Republic of Albania’, while Article 5 stipulates that ‘[t]he Republic of Albania applies international law that is binding upon it’. While it is clear from Article 4(2) that the Constitution takes precedence over any other legal instrument, Article 122 provides that [a]ny international agreement that has been ratied constitutes part of the internal juridical system after having been published in the Ofcial Journal of the Republic of Albania. It is applied directly, except for cases when it is not self-executing and its application requires the adoption of a law. … An international agreement that has been ratied by means of a law has superiority over laws of the country which are not compatible with it.

Thus, the Rome Statute forms a part of the internal legal order of Albania and is superior to the national laws. Not only does this mean that, in cases of conict, the provisions of the Rome Statute will prevail, but also that national legislation should be interpreted in the spirit of the Statute. According to Article 131(a) of the Constitution, should a conict arise, it is left to the Constitutional Court to give a decision as to compatibility of treaties with domestic legislation. It remains to be seen whether the Constitutional Court will be confronted with such cases in the future and whether the Court would be willing to embrace the jurisprudence of the ICC regarding the interpretation of the Rome Statute.

5

Vendim mbi Pajtueshmërinë e Kushtetutës së Republikës së Shqipërisë me ‘Statutin e Romës’ për Gjykatën Ndërkombëtare Penale (Decision on the Compatibility of the Constitution of the Republic of Albania with the ‘Rome Statute’ of the International Criminal Court), Decision of the Albanian Constitutional Court no.112 of Founding Register of 23 September 2002, available at the website of the Constitutional Court <www.gjk.gov.al/vendimi02. html> (visited 24 February 2006).

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II. Complementarity 1. General Principles of Jurisdiction In its rst chapter, the Albanian Criminal Code6 establishes the general principles under which Albanian courts may exercise jurisdiction. Article 6 of the Criminal Code asserts the active nationality principle according to which the criminal law of Albania applies to Albanian citizens who have committed criminal acts within the territory of the Republic of Albania. The same applies to Albanian citizens committing crimes abroad, when the act committed also constituted an offence under the law of the foreign country and provided that a nal sentence has not been handed down by a court in the state in question. This nationality principle of jurisdiction applies to Albanian citizens holding dual nationality, as well. The Criminal Code recognizes also the territoriality and protective (or security) principles of jurisdiction.7 Despite the possibility of a broad interpretation of the ‘security’ concept, the Criminal Code limits the applicability of this basis of jurisdiction to specic offences. Those include crimes against humanity; crimes against Albanian independence and its constitutional order; terrorism; hijacking airplanes or ships; and crimes which affect the life or health of Albanian citizens, and to which the law provides for a punishment of imprisonment for ve years or any other heavier punishment.8 The Criminal Code does not recognize universal jurisdiction and it is remarkable that according to a strict interpretation of its Article 7, the protective principle applies solely with regard to one category of core crimes under the Rome Statute—crimes against humanity. Another matter of concern is the failure of Albanian legislation to recognize state jurisdiction to prosecute non-nationals for war crimes committed abroad, whereas the Geneva Conventions require states parties to search for and prosecute or extradite persons alleged to have committed or to have ordered others to commit grave breaches of the Conventions, regardless of their nationality.9

6

Kodi Penal i Republikës së Shqipërisë (Albanian Criminal Code), Law no. 7895, 27 January 1995, amended version of 2006 (hereinafter also ‘CC’). 7 Respectively, Arts 7(1) and 7(2), CC. 8 Art. 7(2), CC. 9 The 1949 Geneva Conventions, respectively Arts 49 (I), 50 (II), 129 (III) and 146 (IV).

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2. Core Crimes Even though no implementing legislation on the Rome Statute exists, the Criminal Code covers to a large extent the crimes under the Statute. This is partly due to the fact that Albania was party to a number of international instruments requiring the criminalisation of acts punishable under the Statute before the latter entered into force. The principle of nulla poena sine lege is an integral part of Albanian criminal law and the possibility of directly applying penal provisions of international agreements has not been considered even in academic writings. With respect to the crime of genocide, Albania acceded to the 1948 Genocide Convention10 on 12 May 1955.11 The Albanian provision on genocide is, however, different from the denitions of the Genocide Convention and the Rome Statute. It denes genocide as [t]he execution of a premeditated plan aiming at the total or partial destruction of a national, ethnic, racial or religious group directed against its members and combined with the following acts, such as intentionally killing of the group’s members, serious physical and psychological harm, placement in difcult living conditions which causes physical destruction, applying birth preventing measures, as well as the obligatory transfer of children from one group to another.12

The key distinction from the Rome Statute is that Albanian law requires ‘the execution of a premeditated plan’. It is unclear what the intention of the legislator was when it decided to include this requirement in the denition. But clearly, in order for an Albanian court to conclude that genocide has been committed, it must be satised, amongst other things, that a premeditated plan has been executed. Thus, a discrepancy with the Rome Statute arises. Although it is difcult to imagine genocide being perpetrated without a degree of forethought and planning, the premeditation requirement could make it even more difcult to prove genocide in an Albanian court. With respect to crimes against humanity, Article 74 of the Criminal Code denes them as the ‘[k]illing, extermination, slavery, forcible transfer and deportation, as well as every act of torture or other inhuman violence committed for political, ideological, racial, ethnic and religious reasons’. This denition does not require any nexus to an armed conict, nor to ‘a widespread or systematic attack directed against any civilian

10 Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948, in force 12 January 1951, 78 United Nations Treaty Series 277. 11 Since ratication took place during the communist regime, no law was adopted authorizing ratication. 12 Art. 73, CC.

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population’,13 but it does require proof of a discriminatory motive. By containing an exhaustive list of such discriminatory motives (that resemble those of the genocide provision14), the denition turns out to be quite restrictive. Furthermore, the criminal law of Albania fails to qualify apartheid15 and persecution against any identiable group or collectivity on any ground universally recognized as impermissible under international law and in connection with any of the core crimes of the Rome Statute16 as crimes against humanity. It also fails to include imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law17 as a crime against humanity. There is no reference in Article 74 of the Albanian Criminal Code to enforced disappearance of persons,18 nor is there a provision qualifying as crime against humanity various forms of sexual violence.19 The most problematic denition remains that of war crimes. Article 75 of the Criminal Code denes war crimes as [a]cts committed … in war time, such as murder, maltreatment or deportation for slave labour, as well as any other inhuman exploitation to the detriment of the civilian population or in occupied territory, the killing or maltreatment of war prisoners, the killing of hostages, destruction of private or public property, destruction of towns, commons or villages, which are not ordained from military necessity.

Even though the provision is applicable to international armed conicts as well as to internal armed conicts, the list of war crimes provided by it is very limited. It was, in fact, drafted following the denitions laid out in the Nuremberg Charter.20 The provision fails to include all of the grave breaches of the 1949 Geneva Conventions and the 1977 Additional Protocols,21 to which Albania is a party. Acts such as 13

While the former is not a requirement under the Rome Statute either, the latter is required by Art. 7(1), RS. 14 That is to say, committed against national, ethnic, racial and religious groups, cf. supra note 12 and accompanying text. 15 See Art. 7(1)(j), RS. Albania is not a party to the International Convention on the Suppression and Punishment of the Crime of Apartheid, New York, 30 November 1973, in force 18 July 1976, 1015 United Nations Treaty Series 243. 16 Art. 7(1)(h), RS. 17 See Art. 7(1)(e), RS. 18 Art. 7(1)(i), RS. 19 Art. 7(1)(g), RS 20 Cf. Art. 6, Charter of the International Military Tribunal annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, London, 8 August 1945, 82 United Nations Treaty Series 279. 21 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in

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wilfully depriving prisoners of war and protected civilians from a fair and regular trial; the compulsion of prisoners of war or civilians to serve in the armed forces of the hostile power; the conduct of certain medical experiments and/or the use of certain weapons are not included in specic in the Albanian criminal provision on war crimes. Moreover, the Article does not make a distinction between the rights of, for example, wounded and sick combatants, prisoners of war and other civilians who nd themselves in the hands of a state of which they are not nationals. From a theoretical point of view, however, all the above-mentioned lacunae in Albanian war crimes legislation could be overcame. By the way Article 75 is formulated, it seems that the list of war crimes contained therein is not exhaustive. Since Albania is a state party to the Geneva Conventions and the Additional Protocols, and, according to the Constitution, the provisions of these instruments form part of the national legal order, the Criminal Code could be interpreted in light of these instruments.22 While a broad interpretation of Article 75 of the Criminal Code thus remains, at least in theory, a possibility, the issue of nulla crimen sine lege would immediately raise23 and it would be up to the court to address it. Moreover, from the practical point of view, reference to international treaties may prove to be a less than ideal solution due to the fact that Albanian lawyers and judges generally lack expertise in the eld of international humanitarian law. In addition to the Criminal Code, the Albanian Military Criminal Code is of relevance, despite being largely applicable only to the military.24 This Code criminalizes, inter alia, the theft of property belonging to prisoners of war or to the wounded and sick in the battle eld; the use of weapons prohibited under international law or combat deemed unlawful under international law; the continuance of military operations after a cease-re; the brutal treatment of the wounded, sick, and prisoners of war; the abandonment of the wounded; the killing and the intentional injuring of prisoners the Field, Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Convention (III) relative to the Treatment of Prisoners of War, and Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, in force 21 October 1950, 75 United Nations Treaty Series 31, 85, 135 and 287 (hereinafter the ‘Geneva Conventions’); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conicts (Protocol I), and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conicts (Protocol II), Geneva, 8 June 1977, in force 7 December 1978, 1125 United Nations Treaty Series 3 and 609 (hereinafter the ‘1977 Additional Protocols’). 22 These instruments are, moreover, superior to all national legislation except the Constitution. See supra notes 1–5 and accompanying text. 23 Cf. Art. 22, RS, which requires a strict construction of a denition of a crime under the Statute. 24 Kodi Penal Ushtarak i Republikës së Shqipërisë (Military Criminal Code of the Republic of Albania), Law no. 8003, 28 September 1995, amended by Law no. 8919, 4 July 2002 (hereinafter also ‘MCC’).

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of war; the illegal use of the emblem of the Red Cross and Red Crescent, as well as the destruction of their property.25 The principles of jurisdiction recognized by the Military Criminal Code are the same as those recognized by the Criminal Code, i.e. territoriality and active nationality.26 In addition to the military, the Code also applies to civilians acting against the defence interests of the Albanian State. According to its Article 3 the Military Criminal Code is applicable also when the military offence targets an ally or partner State.

3. General Principles of Criminal Law Albanian legislation fails to address the issue of command responsibility, as there is no provision in the Criminal Code or in the Military Criminal Code dealing with the responsibility of commanders and other superiors with respect to the criminal acts of subordinates under their effective authority and control. This constitutes a serious gap and Article 28 of the Rome Statute needs to be implemented. As already stated, the direct applicability of a provision deriving from an international treaty remains difcult in Albania, in particular in this case, where the provision refers explicitly to ‘criminal responsibility under this Statute’.27 As regards participation in a crime, the Criminal Code provides that ‘[o]rganizers, instigators, and helpers bear responsibility as the executors for the criminal act committed, according to the respective involvement and role played’.28 The Code also recognizes the responsibility for cases of attempt.29 However, direct and public incitement to genocide (Article 25(3)(e) of the Rome Statute) is not criminalised under Albanian law. Incitement is therefore punishable only if it meets the criteria of participation in the crime, which, inter alia, require that the crime be actually committed. The Criminal Code establishes grounds for excluding criminal responsibility and mitigation of a sentence, applicable to all criminal acts under the Criminal Code: the mental state of the person committing the act, state of necessity, ‘extreme defence’ (i.e. state of duress), and acting under a superior’s order or a legal obligation.30 Article 18 of this Code contains a provision on criminal acts committed while intoxicated (whether of alcohol, narcotics or other stimulants). Intoxication is generally not considered to be a valid reason for excluding criminal responsibility, but if it is accidental and brings 25

Arts 60, 87/a, 91-98, MCC. Arts 2 and 5, MCC. 27 Emphasis added. 28 Art. 27, CC. 29 Art. 22, CC. 30 Arts 17–22, CC. 26

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about a temporary reduction in the accused’s mental faculties, the circumstances should lead to a mitigation of the sentence. Intentional intoxication to facilitate the commission of a crime constitutes an aggravating circumstance. Articles 19-20 of the Criminal Code on the defences of necessity and duress are similar to Articles 31(1)(c) and (d) of the Rome Statute, respectively, although the former were not drafted solely for crimes against international law. According to Albanian law, the act for which criminal responsibility is excluded on these grounds must have been carried out in the defence of life, health or property, and must have been proportional to the threat. Under Article 21 of the Criminal Code, criminal responsibility is also excluded when the person acts ‘exercising rights or fullling duties determined by law or an order ruled by a competent authority, unless the order is obviously unlawful’. In cases covered by this provision, the person who gave the order is held responsible. This is, furthermore, a general defence that applies to civilians as well as to military personnel. In contrast to Article 33(1)(b) of the Rome Statute, the Albanian legislation does not contain a subjective element. According to the Rome Statute, both the character of the order and the understanding of its character by the person obeying, i.e. whether the person knew that the order was unlawful, matter in establishing criminal responsibility. Whilst for the Albanian Legislator criminal responsibility depends mainly on the character of the order: if the person was under an obligation to obey and the order was not ‘obviously unlawful’ the person obeying to the order is excluded from criminal responsibility. The objective element, i.e. ‘obviously unlawful’, has not been interpreted by any Albanian Court with regard to crimes of international relevance. However, this term has been used by various other national courts, and its interpretation rests upon wide international acceptance.31 In addition to the exclusion of responsibility in an ‘Article 21 situation’, Article 48(c) of the Criminal Code considers the commission of a crime under the inuence of unlawful actions or instructions of a superior a mitigating circumstance. According to Article 14 of the Criminal Code, ‘[n]o one shall be sentenced for an action or omission which is provided for by law as a criminal act, unless the person is guilty of committing the action or omission’. According to the same Article, a person is to be found guilty when he commits the act intentionally or negligently. ‘A criminal act is committed intentionally when the person foresees the consequences of the criminal act and intends the foreseen outcome or, in the event that he does not desire the outcome, he nevertheless consciously allows the consequences of the act

31 See M. Cherif Bassiouni (ed.), International Criminal Law (Transnational Publishers: Dobbs Ferry, 1986), vol. II, at 405 et seq.

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to occur.’32 In the case of negligence, the defendant does not desire the consequences of the criminal act but he sees the possibility of their occurrence and, with a certain carelessness, hopes to avoid them. Alternatively, a defendant can also be found to be negligent where he ought to have foreseen the consequences.33 With regard to ‘mistake of law’, as contained in Article 32 of the Rome Statute, the Criminal Code recognizes the ‘ignorance of law’, which is ‘objectively unavoidable’, as a ground for excluding criminal responsibility.34 Of course, it cannot be sustained that a lack of awareness as to whether a particular act is an international crime, as dened under national and international law, constitutes an ‘objectively unavoidable ignorance’. The concept of ‘mistake of facts’, as used in Article 32 of the Rome Statute, is not reected in the Criminal Code outside the general requirement of guilt, as discussed earlier. The Constitution, in Article 29, recognizes the principle of non-retroactivity of criminal law, and the same principle is expressed in Article 3 of the Criminal Code. However, the Constitution recognizes an exception to the rule of non-retroactivity with regard to acts ‘which, at the time of their commission, according to international law, constituted war crimes or crimes against humanity.’35 The present author nds it surprising that genocide is not specically mentioned under this provision. However, it can be argued that the Albanian legislation adopts the language of the Nuremberg Charter and other international instruments where the term ‘crimes against humanity’ includes the crime of genocide.36 In practice, it would be difcult to invoke the principle of non-retroactivity before an Albanian court with respect to crimes under the jurisdiction of the ICC: despite this principle being guaranteed by the Constitution, the ruling of the Constitutional Court that the Rome Statute is compatible with the Constitution would tend to preclude its use as a defence in relation to these crimes.37 Albania has acceded to the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity.38 Article 67 of the Criminal Code excludes the applicability of statutes of limitation in case of war crimes and crimes against humanity. In light of the language of the above-mentioned international convention, this Article can be construed to cover cases of genocide as well. 32

Art. 15, CC. Art. 16, CC. 34 Art. 4, CC. 35 Art. 29, Constitution. 36 Nuremberg Charter, supra note 20. See also Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity, New York, 26 November 1968, in force 11 November 1970, accession 19 May 1971, 754 United Nations Treaty Series 73 (hereinafter ‘Statutory Limitations Convention’). 37 See Decision on the Compatibility of the Constitution with the Rome Statute, supra note 5. 38 Statutory Limitation Convention, supra note 36. 33

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4. Preconditions for the Exercise of Jurisdiction The principle of ne bis in idem is reected in Article 34 of the Constitution. According to this principle, ‘[n]o one may be punished more than once for the same criminal act nor be tried again, except for cases when the retrial of the case is decided on by a higher court, in accordance with the law.’ In its decision of 23 September 2003, the Constitutional Court found that a trial before the ICC, following a trial before an Albanian Court for the same criminal act, is to be considered as a retrial of the case by a higher court in accordance with Albanian law.39 It is clear from the text of Article 34 of the Constitution, as well as from the practice of Albanian courts, that the ne bis in idem principle precludes only a second prosecution and/or trial for the same criminal act. A second prosecution or trial based on the same facts, but which constitute a different criminal act, is not prohibited. The Constitution recognizes an immunity from criminal proceedings for a number of state ofcials: the President of the Republic, members of Parliament, and members of the Council of Ministers. Members of Parliament and of the Council of Ministers may not be prosecuted without authorization granted by the Parliament.40 The President, on the other hand, is, according to Article 90(1) of the Constitution, ‘not responsible for acts carried out in the exercise of his or her duty.’ He or she may be removed from ofce for serious violations of the Constitution or for the commission of a serious crime if a proposal to that effect is put forward by no less than one-fourth of the members of Parliament and supported by not less than two-thirds of the members of the Parliament. Thereafter, the Constitutional Court, in case it veries the guilt of the President, declares him or her relieved of his or her duties.41 While the issue of immunities for Albanian ofcials before Albanian courts is regulated by the above-mentioned provisions, their relevance to proceedings before the ICC was considered by the Constitutional Court when dealing with the compatibility of the Rome Statute with the Constitution. The Constitutional Court came to the conclusion that the immunities stipulated by national law have the function of enhancing the separation and balance of powers by guaranteeing protection from the national judiciary to the holders of executive and legislative powers. Since the ICC is 39

Decision on the Compatibility of the Constitution with the Rome Statute, supra note 5, at 2. Art. 73, Constitution. See also Article 288(2), CCP, on the role of the prosecutor in such a case. The procedure according to which Parliament gives its authorization is elaborated in Articles 174-179, Vendim ‘Për Miratimin e Rregullores së Kuvendit Popullor’ (Decision ‘On the Adoption of the Rules of procedure of the Parliament’), Decision No. 357, 9 April 1998, in force 4 May 1998, Fletore Zyrtare, Nr. 10/1998. See also Vendim ‘Për dhënien e autorizimit për llimin e ndjekjes penale ndaj anëtarit të Këshillit të Ministrave’ (Decision of the Constitutional Court ‘On issuing authorization to proceed with criminal investigation against a member of Council of Ministers’), No. 38, 23 June 2000, Fletore Zyrtare nr. 18/2000. 41 Art. 90, Constitution. 40

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not part of the national system of separation and balance of powers, national immunity provisions could not bar the ICC or any other international organ from exercising its own jurisdiction. According to the Constitutional Court, there exists a clear rule of international law that precludes the application of immunities under national law before international judicial bodies for serious international crimes. It concluded that, in accordance with the Constitution, this rule also forms part of the legal order of the Republic of Albania.42 The Constitutional Court did not consider the issue of immunities granted to foreign ofcials. However, it is worth mentioning that Albania is a party to the Vienna Conventions of 1961 and 1963,43 and it is also under an obligation of customary international law to grant immunity from prosecution to certain categories of ofcials of other states.44 Amnesties, according to Article 92(b) of the Constitution, may be granted by the President of the Republic. To date, there have been no amnesties granted for international crimes.

5. Offences against the Administration of Justice The Chapter IX of the Criminal Code proscribes a substantial number of acts against the administration of justice.45 In addition, Chapter VIII of the Criminal Code deals with crimes against state authority, covering criminal acts against state activities committed by citizens and public ofcials.46 Through a broad interpretation of the this existing legislation, Albania might be seen as complying with Article 70(4) of the Rome Statute in terms of construction of offences. Yet the absence of an express provision criminalizing ‘[r]etaliation against an ofcial of the [International Criminal] Court on account of duties performed by that 42

Decision on the Compatibility of the Constitution with the Rome Statute, supra note 5, at 2. Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, in force 24 April 1964, ratication 8 February 1998, 500 United Nations Treaty Series 95; Vienna Convention on Consular Relations, Vienna, 24 April 1963, accession 4 October 1991, 596 United Nations Treaty Series 261. 44 See in this respect: Regina v. Bartle and the Commissioner of Police for the Metropolis and Others (ex parte Pinochet), House of Lords, [1999] All England Law Reports 97; and Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), ICJ Reports (2002) 3. 45 It covers, inter alia, failure to report a crime; obstruction of justice; false reporting of a crime; perjury; refusing to testify as witness, expert or interpreter; false expertise and translation; corruptly inuencing or threatening the witness, expert or interpreter; unlawful criminal prosecution; unfair sentencing; asking for or receiving remuneration; threatening, opposing and battering and insulting a judge; acts opposing judicial decisions, and so on. See Arts 300-325, CC. 46 Arts 235-260, CC. 43

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or another ofcial’,47 and the fact that certain provisions refer exclusively to Albanian citizens, are not remedied by a liberal interpretation of the existing law. To clarify the situation, implementing legislation should be adopted, expressly expanding the applicability of Chapter IX of the Criminal Code to offences against the International Criminal Court as at present the wording of the Albanian legislation criminalises only acts against the integrity of national investigative or judicial process.

6. Discretion of the Prosecution Title VI, Chapter III of the Code of Criminal Procedure states that the prosecutor is in principle under a duty to initiate proceedings.48 However, there are some exceptions. According to Article 290 of the Code, no proceedings should be commenced in case criminal responsibility is excluded by law.49 In addition, no proceedings should commence for acts which are not qualied as criminal by the legislation, as well as when it is evident that the alleged act did not happen, or the person alleged of committing it has died. Criminal prosecution is also excluded with respect to acts covered by an amnesty. For certain acts, their criminal prosecution is conditional upon an ofcial complain led by the victim (i.e. defamation) and the prosecution should be suspended in case the victim withdraws the claim. Under all these circumstances, the prosecutor renders a decision dismissing the proceedings and sets out the reasons for doing so. Following such a decision, all parties who have led a complaint, or are otherwise involved as alleged victims or/and witnesses, are notied, and they may appeal this decision to the court within ve days from the date of the notication.50 In addition, Article 289 of the Code of Criminal Procedure also prohibits proceeding in cases where authorization for proceedings is required by law, which, according to the Constitution, is the case for proceedings against a member of Parliament or a member of the Council of Ministers.51

47

Art. 70(1)(e), RS. Kodi i Procedurës Penale i Republikës së Shqipërisë (Code of Criminal Procedure of the Republic of Albania), Law no. 7905, 21 March 1995, amended version of June 2002 (hereinafter also ‘CCP’). 49 See supra note 32 and accompanying text. 50 Art. 291, CCP. 51 Arts 73 (2) and 103 (3), Constitution, respectively. See also supra notes 40–42 and accompanying text. 48

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III. Cooperation with the Court 1. Implementation of the Duty to Cooperate in General The main problems in implementing the Rome Statute in Albania relate to the fact that no legislation on cooperation with the ICC has been enacted. The duty to cooperate remains therefore governed, mutatis mutandis, by Title X of the Code of Criminal Procedure on inter-state cooperation in criminal proceedings.52 Even though most of the provisions refer to ‘inter-state cooperation’, the title of the Chapter and some specic provisions refer to ‘foreign authorities’, which arguably include international organizations. In Albania, any request for cooperation or extradition by a foreign authority should be addressed to the Ministry of Justice.53 The competent district prosecutor and court are principally charged with the execution of a request. According to Albanian practice, any request for assistance or cooperation by a foreign authority shall be communicated through diplomatic channels. Albania did not choose a language for communication on ratication pursuant to Article 87(2) Rome Statute, thus the ICC can send Albania requests in one of its working languages. Having ratied the Rome Statute, Albania is under an international duty to recognize the necessary legal capacity of the Court. Even though there is no implementing legislation, some of the provisions of the Rome Statute are directly applicable in Albania.54 The stipulations of the Statute on the legal personality of the Court might well fall into this category. There is no domestic law provision allowing the Court to sit on Albanian territory.55 However, considering the national practice with other international institutions, it can be concluded that the Court would be allowed to sit on the territory of Albania on an ad hoc basis and to act with full legal capacity, if so required. Any such arrangement would be then regulated through a bilateral agreement. Albania became a party to the Agreement on Privileges and Immunities of the Court in 2006.56 The entry into force of the Agreement for Albania was not followed 52

Arts 301 et seq., CCP. See, for example, Arts 489 and 505, CCP. 54 As was mentioned earlier, the Rome Statute forms a part of the internal legal order of Albania. See supra notes 1–5 and accompanying text. 55 Arts 3(3) and 62, RS. 56 Agreement on the Privileges and Immunities of the International Criminal Court, New York, 9 September 2002, entered into force 22 July 2004, accession 2 August 2006, 2271 United Nations Treaty Series 3. See also Ligj ‘Për aderimin e Republikës së Shqipërisë në Marrëveshjen “Për Pivilegjet dhe Imunitetet e Gjykatës Ndërkombëtare Penale”’ (Law ‘On adherence of the Republic of Albania to the “Agreement 53

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up by any amendment to national legislation, but the Agreement constitutes part of the national legislation and can be directly applied.

2. Specic Forms of Cooperation Albanian legislation covers, to a reasonable extent, requests for cooperation mentioned under Article 93(1) of the Rome Statute. Articles 505 to 509 of the Code of Criminal Procedure deal with letters rogatory or requests, as well as grounds for refusal of cooperation. Article 505(1) of the Code of Criminal Procedure provides that the Ministry of Justice does not grant support to a letter rogatory if it concludes that ‘the requested actions impair the sovereignty, the security and important interests of the state’. In addition, the Ministry does not proceed with the requests when it is certain that the requested actions are expressly prohibited by law or contradict the fundamental principles of the Albanian rule of law. It does not grant support to the letter rogatory when it believes that the defendant, because of reasons related to race, religion, sex, nationality, language, political beliefs or the social state, shall be treated unfairly by the foreign authority issuing the request, except when it is certain that the defendant has freely given his consent to the letter rogatory.57

Moreover, there exists a ‘double criminality requirement’, stipulated in Article 506(4)(b) of the Code of Criminal Procedure. According to this principle, the alleged act on which proceedings have commenced by the foreign authority should be considered criminal by the Albanian legislation, otherwise the rogatory letter or request should be refused. Execution of letters rogatory takes place only after an afrmative decision by the competent district court. Even though it can be argued that an additional national judicial intervention is out of place if the request comes from the ICC, such an intervention adds to the protection of the rights of the individual. The judicial panel of the district court that is appointed to hear the matter applies the Code of Criminal Procedure, ‘except where special rules, requested by the foreign judicial authority and which are not contrary to the principles of the Albanian rule of law, shall be observed’.58

on the Privileges and Immunities of the International Criminal Court”’), Law no. 9552, 5 June 2006, Fletore Zyrtare, Nr. 70/2006. 57 Art. 505(2), CCP. 58 Art. 507(2), CCP.

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Title IV of the Code of Criminal Procedure deals with evidence. It regulates testimonies,59 interrogation of the defendant and witnesses60 confrontations,61 identication of persons or/and object,62 experiments and expert testimony,63 material evidence,64 as well as records and documents.65 It also covers the means of searching for evidence, such as observations,66 inspections67 and seizure of evidence,68 as well as interception of communications.69 It is beyond the scope of this article to deal with each one in detail. With regard to information, documentation, evidence and assets, it can be said, nonetheless, that even though some forms of assistance mentioned under Article 93(1) of the Rome Statute are not explicitly provided for in Albanian legislation, they are covered by other, more general provisions. For example, the identication of the location of items or the examination of places or sites, including the exhumation and examination of grave-sites, is covered by articles dealing with ‘material evidence’ and ‘the means of searching for evidence’. With respect to the cooperation relating to suspects, victims, and witnesses, in addition to the general grounds for refusal elaborated above, the law stipulates that the Ministry of Justice shall not proceed with a request for appearance of a witness, expert or suspect if no sufcient guarantee is given for the security of the person.70 With regard to testimony, the Code was recently amended to provide for the taking of testimony by video-link and under oath;71 thus, a request to that effect by the Court can be respected. The witness has a duty to appear before the Albanian court and in case of refusal may be brought before the court by coercive measures. The witness furthermore has a duty to testify, except if an evidentiary privilege is applicable.

59

Arts 153–166, CCP. Arts 166–169, CCP. 61 Arts 169–171, CCP. 62 Arts 171–176, CCP. 63 Arts 176–187, CCP. 64 Arts 187–191, CCP. 65 Arts 191–198, CCP. 66 Arts 198–202, CCP. 67 Arts 202–207, CCP. 68 Arts 207–221, CCP. 69 Arts 221–226, CCP. 70 Art. 505(3), CCP 71 Arts 361-361a, CCP. See also Ligji ‘Per Mbrojtjen e Deshmitareve dhe Bashkepunetoreve te Drejtesise’ (Law ‘On the Protection of Witness and Collaborators of Justice’), Law no. 9205, 15 March 2004, Fletore Zyrtare, Nr. 22/2004 (hereinafter ‘Law on Witness Protection’). 60

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The Code of Criminal Procedure recognizes four sets of evidentiary privileges: those based on spousal or family relations,72 those based on a professional duty of secrecy,73 those based on state secrets74 and the privilege against self-incrimination.75 The question remains whether the scope of the evidentiary privileges under Albanian law would be acceptable to the Court in a given case. This is particularly contentious in the case of the state secrets. However, the law provides an exception to this privilege if the information sought is related to crimes intended to overthrow the constitutional order.76 Since the Albanian constitutional order is based on respect for human rights, it can be argued that serious crimes such as those under the Rome Statute attempt to overthrow the constitutional order. It is the view of this author that the scope of Albanian evidentiary privileges is not excessive. The remaining cases can be considered to fall within Article 93(3) of the Rome Statute, which makes provision for ‘existing fundamental legal principle[s] of general application’. The duty to facilitate the voluntary appearance of witnesses before the Court, as stipulated in Art. 93(1)(e) of the Statute, is regulated by the above-mentioned Law on Witness Protection. The prolonged lack of such legislation was of serious concern, not exclusively in relation to the implementation of the Rome Statute in Albania, but in general for guaranteeing fair criminal proceedings. The law was passed only in March 2004,77 establishing a new competent authority in charge of witness protection (the Directorate on Witness Protection and the Commission on the Evaluation of the Special Protection Measures), the specic measures these authorities may take, as well as the procedures through which such measures are to be taken. Protected by this law are persons who report or testify on facts or circumstances related to a core crime specied in this law and which constitute evidence in the criminal proceedings and, as such, place the person in ‘a current, concrete and serious threat’. The law applies also when through such testimonies core crimes are prevented or when the testimonies serve to compensate the damage caused. The protective measures foreseen by the law are various, including protected testimony, physical safety measures for the protected person but also his or her family, legal counselling, social and nancial assistance. In any case, the rights and the obligations of the protected person and competent authorities are elaborated in detail in the so-called ‘protection agreement’, which also 72

Art. 158, CCP. Art. 159, CCP. 74 Arts 160 and 161, CCP. 75 Art. 157(2), CCP. 76 Art. 161, CCP, provides that data or documents connected with criminal offences, carried out in an attempt to overthrow the constitutional order, shall not be considered as state secrets. 77 Law on Witness Protection, supra note 71. 73

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establishes the duration of the measures and the condition for the termination of the agreement. In addition to granting special measures to the protected person, the competent authorities may decide to apply these measures also to relatives or persons connected through marriage or otherwise when such persons, too, are in a situation of ‘a current, concrete and serious threat’. The obligation to consult the Court in case of difculties in the execution of a request is not regulated by national legislation. However, there is a well-established practice in cooperating with foreign authorities, where such consultations proceed through diplomatic channels. Albanian legislation is silent on the information to be provided by the foreign authority in cases of requests for assistance of the kind mentioned in Article 93 of the Rome Statute. However, considering Articles 505 to 509 of the Code of Criminal Procedure, it can be concluded than no other information than that which is required by Article 96 of the Rome Statute will be necessary.78 There is no implementing legislation dealing with the conduct of on-site investigations by the Prosecutor of the ICC in Albania. However, since the Rome Statute is ratied by Albania, it forms part of the internal legal order. Under the Statute, the competent Albanian authorities shall permit on-site investigations in the cases specied in Article 99(4) of the Rome Statute. It can also be argued that, in other cases, the request for on-site investigations can be considered as a letter rogatory, which needs to be satised, unless one or more of the grounds of refusal provided by national legislation are applicable.79 The grounds for denial of a request for forms of assistance such as those mentioned under Article 93 of the Statute were dealt with earlier. The present author holds the view that there are no fundamental principles of Albanian national law that may constitute an impediment to cooperation under Article 93. This is also supported by the fact that the Constitutional Court found the Rome Statute to be compatible with the Constitution.80

3. Arrest and Surrender Since there is no implementing legislation, the existing Albanian legislation deals solely with ‘extradition to a foreign authority’.81 According to this legislation, grounds for

78

For the requirements imposed by Arts 505-509, CCP, see supra note 57 and accompanying text. Ibid. 80 See Decision on the Compatibility of the Constitution with the Rome Statute, supra note 5. 81 Arts 488–503, CCP. 79

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refusal of an extradition request are: the political offence exception,82 the danger of prosecution on discriminatory grounds, the lack of double criminality,83 considerations deriving from the ne bis in idem principle, and the statute of limitations. Notably, an Albanian citizen may not be extradited unless Albania is under an obligation to extradite deriving from an international agreement.84 Extradition is prohibited when the person subject to the request has committed a crime in Albania and has been granted an amnesty with respect to the crime with which the request deals.85 Since the Rome Statute is superior to national laws, most of the above-mentioned grounds stipulated by the Code of Criminal Procedure do not apply in the case of a request by the ICC. However, the ‘Article 98(2) Agreement’ between Albania and the United States might serve as another ground for refusal to such a request.86 The information to be provided by the Court with the request for surrender is the same as that required in cases of inter-state requests, that is to say a report of the criminal offence the person subject to extradition is charged with, indicating the time and the place of the commission of the offence and its legal qualication; a copy of the sentence or decision which gave rise to the request; the text of legal provisions to be applied, indicating whether for the criminal offence subject to extradition the law of the foreign country provides for the death penalty, and personal data and any other possible information supporting the identity and the citizenship of the person who is subject of the extradition request.87

Since the relevant provisions of the Code of Criminal Procedure were drafted to regulate inter-state extradition procedures, they do not emphasize the duty of competent authorities to execute requests without delay. According to this legislation, the prosecutor is obliged, after receiving documentation from the Ministry of Justice, to issue an order of appearance to the person subject of the request. He is also obliged to present the request to the competent court within three months from the date of receipt of the request.88 Even though the Code of Criminal Procedure does not stipulate detention as the general rule for persons awaiting trial, it provides for the application of coercive 82

As to this exception, see Bert Swart, ‘Arrest and Surrender’, in Antonio Cassese et al., The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press: Oxford, 2002), vol. II, 1639–1703, at 1648. 83 Ibid., at 1652 et seq. 84 Art. 39, Constitution. 85 Art. 491, CCP. 86 See infra note 94 and accompanying text. 87 Art. 489, CCP. 88 Art. 492, CCP.

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measures, including arrest. This is to be applied when dealing with serious crimes, such as those under the jurisdiction of the ICC. Such an interpretation is in line with the Constitution, according to which the application of coercive measures must be proportional to the violation.89 Once the person has been arrested, the competent Albanian court is, according to Article 228 of the Code of Criminal Procedure, under a duty to verify the terms of the arrest and the need for such a measure. This obligation must be complied with within three days of the execution of the measure. In addition, under Article 496 of the Code, the court is obliged to verify the identity of the person and to ascertain his or her view as on the surrender or extradition, which must be included in the record. The Code of Criminal Procedure provides for the possibility of provisional arrest in the absence of a formal request for extradition. In such cases, if no request has been received within forty days from the commencement of the provisional arrest, the arrest is revoked.90 Despite the fact that, from the perspective of the rights of the accused, Albanian legislation appears to be adequate on this point, it is in fact not in conformity with the Rome Statute. Article 92(3) of the Statute in conjunction with Rule 188 of the Rules of Procedure and Evidence establishes a limit of sixty days for the Court to le a formal request. Every person against whom coercive measures are taken has the right to appeal them.91 In addition, Article 246 of the Code of Criminal Procedure stipulates that ‘if appropriate, the court which has ruled on the coercive measure may revoke or replace it’. There is no national provision obliging the competent Albanian authority to inform the ICC Pre-Trial Chamber of such an issue and further for it to give full consideration to its recommendations.92 According to Articles 491 and 498 of the Code of Criminal Procedure, the competent Albanian court shall decide against surrender when the principle of ne bis in idem is being violated. The duty to consult with the ICC in such cases is not implemented in national legislation. In addition, Article 498(4) states that ‘[t]he decision against the extradition prohibits the rendering of a successive decision allowing for extradition as a result of a new request presented for the same facts by the same state, except when the request is based on elements which were not evaluated by the court’. In the present author’s view, this means that following a decision of the ICC in favour of the admissibility of a case, the competent court may revoke its decision against surrender, because of this new element, i.e. admissibility. 89

See Arts 37 and 29, Constitution. Art. 494, CCP. 91 Art. 249, CCP. 92 See Art. 59(4) and (5), RS. 90

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If the arrested person has been convicted or is being investigated for a different crime from that being investigated by the ICC Prosecutor, the extradition or surrender shall be suspended according to Article 500 of the Code of Criminal Procedure. However, the Ministry of Justice may consult the foreign authority and decide in favour of a temporary surrender or agree that the rest of sentence is served in the requesting state. There is no national legislation on competing requests for surrender by the ICC and states. The existing provision on competing requests cannot be applied in such cases, because the provision refers explicitly to competing inter-state requests, recognizing the priority of the request of the state against which the act was directed or on which territory the act occurred.93 The transit of persons in cases of extradition or surrender is regulated by Article 502 of the Code of Criminal Procedure. The transit shall be refused on the same grounds as those applying in cases of extradition. However, when the transit is allowed, coercive measures may be applied in accordance with the Code of Criminal Procedure. This means that, if so required, the individual being surrendered shall be detained in custody during the transit. The duty to consult with the Court regarding ‘problems which may impede or prevent the execution of [a] request’, as laid down in Article 97 of the Rome Statute and in Rule 184(1) of the Rules of Procedure and Evidence, has not been implemented in national legislation. In May 2003, Albania signed a so-called ‘Article 98(2) Agreement’ with the United States. This agreement was ratied by the Albanian parliament on 19 June 2003.94 According to the agreement, US nationals, ofcials, employees, and military personnel present in Albania shall not be handed over to the ICC in the absence of explicit approval by the government of the United States. The same rules apply with regard to surrender, transfer, and expulsion of such persons to third states if the nal purpose of such acts would be to surrender or transfer the individuals to the ICC. At any time, one of the parties may notify the other of its intention to terminate the agreement. However, in such cases the agreement shall continue to remain in force for one additional year from the date of notication.95

93

Art. 489(3) and (4), CCP. Ligj ‘Për Ratikimin e “Marrëveshjes ndërmjet Qeverisë së Republikës së Shqipërisë dhe Qeverisë së Shteteve të Bashkuara të Amerikës për Dorëzimin e Personave në Gjykatën Ndërkombëtare Penale”’ (Law ‘On the Ratication of the Agreement between the Government of the Republic of Albania and the Government of the United States of America on the Surrender of Individuals to the International Criminal Court’), Law no. 9081, 19 June 2003, Fletore Zyrtare, Nr. 53/2003. 95 Ibid., Art. 4. 94

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As stated above, a request for extradition or surrender of nationals shall be refused, unless there is an international agreement providing otherwise.96 Given Albania’s obligations under the Rome Statute, it will be possible to extradite nationals to the ICC. In light of the decision of the Constitutional Court on the compatibility of the Statute with the Constitution,97 immunities of members of Parliament and of the Council of Ministers should not be an obstacle as concerns their possible surrender to the Court.98 In view of Albanian legislation, which includes life imprisonment as a sentence, the fact that the ICC may impose such sentence creates no obstacles to the execution of a request for surrender.

4. Enforcement of Sentences, Fines and Forfeitures The Albanian government has not expressed its willingness to accept sentenced persons in accordance with Article 103(1)(a) of the Rome Statute. In the present author’s view this situation will not change as long as Albania’s lack of detention facilities continues. With regard to the enforcement of nes imposed by the ICC, the Rome Statute allows for with the application of existing national rules, which could provide for either direct enforcement or the exequatur procedure.99 In Albania, the latter procedure is used.100 The Ministry of Justice is obligated to transmit the foreign sentence to the prosecutor of the convicted person’s district of residence. The prosecutor then requests the district court to recognise the foreign sentence; additional materials that may be necessary will be requested from the foreign authority through the Ministry of Justice.101 This procedure raises potential difculties since the Code of Criminal Procedure requires that the sentence to be applied were no more severe than the sentence prescribed under Albanian law. Should the ICC impose a ne higher than that provided by the Albanian legislation, the authorities would execute the highest ne allowed under domestic law, but not the original ne imposed by the ICC.102 This would lead to a 96

See supra note 84 and accompanying text. Decision on the Compatibility of the Constitution with the Rome Statute, supra note 5. 98 See supra notes 41–42 and accompanying text. 99 See Claus Kress and Göran Sluiter, ‘Imprisonment’, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press: Oxford, 2002), vol. II, 1757-1821, at 1786. 100 Arts 512-519, CCP. 101 Art. 512, CPP. 102 Art. 516(1) and (4), CCP. 97

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modication of the original ne, a modication prohibited under Rules 219 and 220 of the Rules of Procedure and Evidence. If an ICC forfeiture order needs execution, an Albanian court will order it. The Criminal Code indicates what items may be subject to an Albanian forfeiture order,103 and requires that the objects of forfeiture have to derive (directly or indirectly) from the crime. This language is in conformity with Article 77(2)(b) of the Rome Statute.

IV. Conclusions The lack of independence of, and the corruption within, the judiciary constitute additional problems of serious concern for Albania. Another problem relates to the fact that Albanian judges, prosecutors, and lawyers lack training and experience in international criminal law.104 As stated from the very beginning, even though the Rome Statute is in force in Albania, to date no implementing legislation has been enacted. By using its current national legislation, Albania is only partly able to full its obligations under the Rome regime. Albanian criminal law needs to be broadly interpreted to fully cover the core crimes of the Rome Statute. However, such broad interpretation would violate the principle nulla poena sine lege. A number of specic legal concepts—for example, command responsibility—are not recognized under Albanian legislation. Moreover, there is a considerable number of procedural matters for which there are no rules. In addition, there are instances where the rules proscribed under national law are in conict with the Rome Statute. One of the resolved matters is the compatibility of the Rome Statute with the Albanian Constitution. In its decision of 23 September 2002,105 the Constitutional Court interpreted the Statute as in full conformity with the Constitution. It also ruled that priority should be given to the application of the provisions of the Rome Statute in cases where they contradict national provisions. However, this does not mean that Albania could dispense with any implementing legislation. It should be borne in mind that some provisions of the Rome Statute are not self-executing. Believing that their application would be ensured by the adoption of a purposive approach in the interpretation of the law on the part of the Albanian courts seems too optimistic. 103

Art. 36, CC. See, for example, ‘Annual Report 2001 of the Albanian Helsinki Committee’, Tiranë, 2001; Human Rights Watch World Report 2002, Albania, at <www.hrw.org/wr2k2/europe1.html> (visited on 24 February 2006). 105 Supra note 5. 104

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In conclusion, Albania needs to draft implementing legislation in order to live up to its obligations under the Statute. The drafting of a cooperation Act, which would translate every relevant provision of the Rome Statute into national law, would be much welcomed. Another option would be the amendment of the existing Albanian criminal law (Criminal Code and Code of Criminal Procedure). Thereafter it would be up to the Albanian courts to guarantee the implementation of this legal framework. A nal assessment of such legislation will only be possible after the rst few cases have been dealt with by Albanian courts.

Implementation of the Rome Statute in Belgium Magdalena Forowicz*

I. Introduction The Kingdom of Belgium signed the Rome Statute of the International Criminal Court (the ‘Rome Statute’) on 10 September 1998 and ratied it on 28 June 2000, after the Federal Parliament had given its assent on 15 May 2000.1 Belgium had already enacted legislation relating to the prosecution of international crimes: specically, in 1993 an Act concerning the punishment of grave breaches of international humanitarian law was adopted;2 it was amended in 1999 and early 20033 (the ‘1993 Grave Breaches of IHL Act’). In August 2003, further developments lead to the 1993 Act being repealed and replaced by a new Act4 (the ‘2003 Grave Breaches of IHL Act’). In addition, in *

LL.B., LL.M, Ph.D. Candidate at the University of Zurich (Switzerland), Research Assistant at the University of Zurich (Switzerland). I would like to express my gratitude to Mr. Damien Vandermeersch, Advocate General at the Belgian Cassation Court, for reviewing earlier drafts of this Report and for providing me with invaluable advice. 1 Loi portant assentiment au Statut de Rome de la Cour pénale internationale, fait à Rome le 17 juillet 1998 (Law giving assent to the Rome Statute of the International Criminal Court, concluded in Rome on 17 July 1998), 25 May 2000, Moniteur belge, 1 December 2000, at 40367. The domestic legislation referred to herein is available in French, Dutch and German in the Moniteur belge, the Belgian Ofcial Journal; see <www.ejustice.just.fgov.be/cgi/welcome.pl> (visited 23 August 2006). All English translations that appear in the present article are by the author, unless otherwise noted. 2 Loi relative à la répression des infractions graves aux Conventions de Genève du 12 août 1949 aux Protocoles I et II du 8 juin 1977 of 16 June 1993 (Act concerning Punishment for Grave Breaches of the Geneva Conventions and Additional Protocols), Moniteur belge, 5 August 1993, at 17751. 3 Loi relative à la répression des violations graves du droit international humanitaire (Act concerning Punishment for Grave Breaches of International Humanitarian Law), 22 February 1999, Moniteur belge, 23 March 1999, at 9286; Loi modiant la loi du 16 juin 1993 relative à la répression des violations graves du droit international humanitaire et l’article 144ter du Code judiciaire (Act Amending the Law on Punishment of Grave Breaches of International Humanitarian Law of 16 June 1993 and Article 144ter of the Criminal Code of Procedure), 23 April 2003, Moniteur belge, 7 May 2003, at 24846. 4 Loi relative aux violations graves du droit international humanitaire (Act concerning the Punishment of Grave Breaches of International Humanitarian Law), 5 August 2003, Moniteur Belge, 7 August 2003,

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order to implement the provisions of the Rome Statute regarding the co-operation of national courts with the International Criminal Court (‘ICC’), an Act on co-operation with the ICC and other international criminal tribunals was adopted on 29 March 20045 (the ‘2004 Cooperation Act’). In order to take effect domestically, treaties need to be approved by the Belgian Federal Parliament prior to ratication.6 Self-executing treaties prevail over preceding or subsequent domestic law without further legislative enactments and the courts must give effect to them.7 Consequently, the Rome Statute is now part of the Belgian legal order and will prevail in case of a conict with other provisions of domestic law. Given that the Rome Statute is largely not self-executing, the adoption of domestic legislation was necessary in order to set out the specic offences, the respective penalties and various cooperation arrangements with the ICC. This approach was also more compliant with the principle of nullum crimen, nulla poena sine lege according to Belgian Law.8 It should be added, nonetheless, that national authorities are entitled to use the Rome Statute as an interpretative tool for the implementing legislation. There are different opinions as to whether international law (including the Rome Statute) prevails over the Belgian Constitution. According to the Court of Cassation (Cour de cassation) and the Administrative Department of the Council of State (Conseil d’État, Section d’administration), i.e. the Supreme Administrative Court of Belgium, international law does indeed prevail over the Constitution.9 However, the Legislative Department of the Council of State (Conseil d’État, Section de législation) and the Court of Arbitration (Cour d’Arbitrage) claim the contrary: in their view, the Constitution would prevail over international law.10 Despite these divergent opinions, it appears at 40506. For the drafting history of the 1993 and 2003 Grave Breaches of IHL Acts, see also text accompanying infra notes 24–26. 5 Loi concernant la coopération avec la Cour pénale internationale et les tribunaux pénaux internationaux (Law on Co-operation with the International Criminal Court and other International Criminal Tribunals), 29 March 2004, Moniteur belge, 1 April 2004, at 18510. 6 Art. 75(3), read in conjunction with Art. 77, 6°, La Constitution coordonnée (The Consolidated Constitution), 17 February 1994, Moniteur belge, 17 February 1994, at 4054 (hereinafter ‘Constitution’). 7 Belgium v. S.A. Fromagerie Franco-Suisse Le Ski, Court of Cassation, 27 May 1971, Journal des Tribunaux (1971) 460. 8 See Damien Vandermeersch, ‘The ICC Statute and Belgian Law’, 2 Journal of International Criminal Justice (2004) 133–157 at 134. 9 L’Association sans but lucratif Groupe d’Etude et de Réforme de la Fonction administrative (G.E.R.F.A.) v. L’Etat belge, Council of State, Administration Department, Decision 62.923 of 5 November 1996, A.61.005/VI12.183, <www.raadvst-consetat.be/Fr/search_fr.htm> (visited 22 August 2006). 10 La question préjudicielle posée par le Conseil d’Etat par arrêt du 24 avril 1990 en cause de la commune de Lanaken contre la Communauté amande, Court of Arbitration, Decision 26/91 of 6 October 1991, <www.arbitrage. be/public/f/1991/1991-026f.pdf> (visited 22 August 2006).

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that, as explained by Vandermeersch, the general trend in Belgian case law indicates that international law prevails over the Constitution.11 The domestic implementation of the Rome Statute revealed several potential problems and inconsistencies with the Belgian Constitution, which will be discussed in detail in the present article.12 Despite these incompatibilities, the Belgian government decided to postpone any constitutional amendments and proceeded with the ratication of the Statute.

II. Complementarity 1. General Principles of Jurisdiction Belgian courts can exercise territorial as well as extra-territorial jurisdiction over crimes covered by the Rome Statute.13 As part of the implementing legislation, the Belgian Parliament introduced several changes to applicable jurisdictional principles. The provision within the Code of Criminal Procedure,14 which lays down the active personality principle, now stipulates that Belgian courts can exercise jurisdiction over a crime committed abroad by a Belgian or by ‘any person who has his or her principal residence on Belgian territory’.15 The provision on passive personality jurisdiction enunciates that courts may exercise jurisdiction over any crime committed by a foreigner against a person who is a Belgian national at the time of the offence or against a person who has resided ‘effectively, habitually and legally’ in Belgium for at least three years.16 The scope of this provision has recently been extended to apply also to ‘a refugee recognized in Belgium and having his or her habitual residence there, in the meaning of the 1951 Geneva Convention Relating to the Status of Refugees and its Additional Protocol.’17 11 Information received from Mr. Damien Vandermeersch, Advocate General, Court of Cassation of Belgium, 28 August 2006. 12 See in particular infra notes 63-72, 135 and accompanying text. 13 Respectively, Arts 3 and 4, Belgian Criminal Code in Marie-Claude Beernaert, Françoise Tulkens and Damien Vandermeersch, Code Pénal: Textes au 1er août 2005 (Bruylant: Brussels, 2005); Code Pénal (Criminal Code), 8 June 1867, Moniteur belge, 9 June 1867, at 3133 (hereinafter ‘CC’). 14 Loi contenant le Titre Préliminaire du Code de Procédure Pénale (The Act containing the Preliminary Title of the Code of Criminal Procedure), 18 April 1878, Moniteur belge, 15 April 1878, at 1265, as translated in Luc Reydams, ‘Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law’, 1 Journal of International Criminal Justice (2003) 679-689 at 687. 15 Art. 6, 1°, 1°bis, Preliminary Title of the CCP. 16 Art. 10, 1°, 1°bis, Preliminary Title of the CCP. 17 Art. 10, 11°, 1°bis, Loi modiant certaines dispositions de la loi du 17 Avril 1878 contenant le Titre

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In addition, universal jurisdiction may be exercised in relation to offences committed outside Belgian territory when either conventional or customary international law requires it.18 Furthermore, there is no requirement for the perpetrator to be on Belgian soil and thus prosecution as well as preliminary investigation can be exercised in absentia.19 Previously, the 1993 Grave Breaches of IHL Act provided that Belgian courts could prosecute any serious breach of humanitarian law irrespective of the place where it was committed, the nationality of the victim or that of the perpetrator, and even without regard to the place where the perpetrator was found.20 As a result of this provision, Belgian courts were inundated with international complaints of humanitarian law violations, giving rise to legal controversy21 and political confrontations. This provision was rst amended in April 2003,22 and due to increasing diplomatic pressure, it was nally hastily repealed by the 2003 Grave Breaches of IHL Act. Generally, it appears that Belgian courts can still assert jurisdiction to prosecute crimes contained in the Rome Statute irrespective of where they were committed and irrespective of who committed them. Belgian jurisdiction is also as wide as required by the Geneva Conventions, which stipulate that states parties must search for and try or extradite persons having committed grave breaches of the Conventions ‘regardless of their nationality’.23 However, it should be noted that immunities under domestic and international law deriving from the ofcial capacity of certain individuals may obstruct prosecution efforts.

2. Core Crimes The rst Belgian laws on the prosecution of international crimes—the 1993 version of the Grave Breaches of IHL Act—was originally limited to implementing the 1949 préliminaire du Code de procédure pénale, ainsi qu’une disposition de la loi du 5 août 2003 relative aux violations graves de droit international humanitaire (Act amending certain provisions of the Act of 17 April 1878 containing the Preliminary Title of the CCP, as well as a provision of the Act of 5 August 2003 on grave breaches of International Humanitarian Law), 22 May 2006, Moniteur belge, 7 July 2006, at 34135. 18 Art. 12bis, Preliminary Title of the CCP. 19 See Art. 12(1), Preliminary Title of the CCP. 20 Art. 7(1), 1993 Grave Breaches of IHL Act. 21 Most notably, Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), ICJ Reports (2002) 3. 22 Loi modiant la loi du 16 juin 1993 relative à la répression des violations graves du droit international humanitaire et l’article 144ter du Code judiciaire (Act Amending the Law on Punishment of Grave Breaches of IHL of 16 June 1993 and Article 144ter of the CCP), 23 April 2003, Moniteur belge, 7 May 2003, at 24846. 23 See Art. 12bis, Preliminary Title of the CCP.

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Geneva Conventions and the two Additional Protocols of 1977.24 A 1999 amendment of the Act expanded its scope to include genocide and crimes against humanity. But even as so amended, the 1993 Act did not cover all crimes incorporated into the Rome Statute: offences such as the enforced disappearance of persons, the crime of apartheid and the conscription of children under the age of fteen into the armed forces were not included. Therefore, further amendments were introduced in early 2003 to bring the 1993 Act in line with the Rome Statute, and also addressed the criticism of Belgium’s expansive universal jurisdiction provision.25 The 2003 Grave Breaches of IHL Act repealed the 1993 Act and inserted the relevant denitions of crimes into the Criminal Code.26 The provision that has become Article 136bis of the Criminal Code essentially reproduces the denition of genocide found in the 1948 Genocide Convention,27 which Belgium had ratied on 5 September 1951: The crime of genocide, as dened herein, committed in times of peace or war, constitutes a crime under international law and it is punishable pursuant to the provisions of the present Title. In conformity with the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, and without prejudice to the criminal provisions applicable to the offences committed by negligence, the crime of genocide means any of the following acts committed with intent to destroy in whole or in 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 inicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 4° Imposing measures to prevent births within the group; 5° Forcibly transferring children of the group to another group.

With respect to crimes against humanity, Article 136ter of the Criminal Code provides that: A crime against humanity, as dened herein, committed in times of war or peace, constitutes a crime under international law and it is punishable pursuant to the provisions of the present Title. In conformity with the Statute of the International Criminal Court, crimes against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any 24

For full citations of the 1993 Grave Breaches of IHL Act and its amendment, see supra note 3. See text accompanying supra notes 20–22. 26 See supra note 13. 27 International Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948, in force 12 January 1951, 78 United Nations Treaties Series 277. 25

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Thus, Belgian law fully complies with the Rome Statute as far as the denitions of genocide and crimes against humanity are concerned. In connection to the criminalization of crimes against humanity, it should be added that Belgium is a party to the 1984 Torture Convention,28 which it signed on 4 February 1985 and ratied on 25 June 1999. On the other hand, Belgium is not a party to the 1973 Apartheid Convention.29 Belgium ratied the 1949 Geneva Conventions on 3 September 1952 and the two 1977 Additional Protocols on 20 May 1986.30 As mentioned earlier, these treaties were implemented by the 1993 Grave Breaches of IHL Act.31 Currently, breaches of humanitarian law, irrespective of whether they were committed as part of an international or non-international armed conict, are criminalized by Article 136quater of the Criminal Code. This provision essentially reproduced the requirements found in Articles 50/I, 51/II, 130/III and 147/IV of the 1949 Geneva Conventions, Articles 11 and 85 of the 1977 First Additional Protocol as well as Article 8 of the Rome Statute.32 The criminalization of war crimes under Belgian law corresponds to the requirements of the Rome Statute, but some differences can be found. Most importantly, perhaps, 28

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, in force 26 June 1987, 1465 United Nations Treaty Series 85. 29 International Convention for the Suppression and Punishment of the Crime of Apartheid, New York, 30 November 1973, in force 18 July 1976, 1015 United Nations Treaty Series 243. 30 See Loi approuvant les quatre Conventions de Genève du 12 août 1949 (Law approving the four Geneva Conventions of 12 August 1949), 3 September 1952, Moniteur belge, 26 September 1952, at 6822; Loi approuvant les deux Protocoles additionnels aux Conventions de Genève du 12 août 1949 (Law approving the two Additional Protocols of the Geneva Conventions of 12 August 1949), 16 April 1986, Moniteur belge, 7 November 1986, at 15196. 31 See supra note 3. 32 Cf. ‘Belgium—Belgique’, Compatibility of National Legal Systems with the Statute of the Permanent International Criminal Court (ICC), ‘Receuils’ of the International Society for Military Law and the Law of War, Sixteenth International Congress, 1-4 April 2003, Rome, Italy, Vol. 2, 177-208 and 585-601 at 179.

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the jurisdiction of national courts over war crimes is not premised on them being ‘committed as part of a plan or policy or as part of a large-scale commission of such crimes‘, on which Article 8 of the Rome Statute places particular importance. Hence, a single act committed by an individual may be punishable as a war crime in Belgium.33 Criminalization of war crimes under Belgian law is therefore more extensive than under the Rome Statute.

3. General Principles of Criminal Law In relation to the responsibility of commanders and other superiors for core crimes, as contained in Article 28 of the Statute, the Criminal Code stipulates that ‘the omission to act within the limits of their possibility of action by those who were aware of the orders imparted with a view to the commission of such an offence or of facts which set in motion its commission, and who could prevent or suppress the completion of the crime’34 is subject to the same punishment as the main offence. This provision of the Criminal Code refers to crimes mentioned in Articles 136bis (genocide), 136ter (crimes against humanity) and 136quater (war crimes). Its wording is open-ended as far as the position of the person giving the order is concerned and may therefore apply to military personnel and other superiors, as required by Article 28 of the Rome Statute. At the same time, Belgian law requires proof of full knowledge, either of orders given to commit a crime or of the facts that led to its commission.35 It does not cover a situation where a military commander or other superior failed to act due to negligence on his part. Article 28 of the Rome Statute, on the other hand, only requires that the superior either knew or, given the circumstances, should have known that his forces were committing or were about to commit these crimes. It therefore appears that domestic law does not correspond exactly to the Rome Statute, as it sets a higher standard of proof for the responsibility of military commanders and other superiors. Under Belgian law, participation in the commission of an offence and an attempt to commit an offence are punishable with the same penalty as the main offence.36 Furthermore, Belgian law stipulates that incitement to, and facilitation of, the commission of genocide, crimes against humanity and war crimes are punishable irrespective of whether the principal offence was actually completed or even commenced. Thus, in 33

Ibid., at 179. Art. 136septies(5), CC, as translated in Vandermeersch, ‘ICC Statute and Belgian Law’, supra note 8, at 140. 35 Vandermeersch, ‘ICC Statute and Belgian Law’, supra note 8, at 141. 36 See Arts 51, 53, 66, and 67, CC. 34

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Belgium, such incitement and facilitation ‘are outlawed as autonomous offences, independently of the existence of the main crime, and not as modalities of participation to one of the “core crimes”’,37 whereas under Article 25(3)(e) of the Rome Statute, only incitement to genocide is punishable. Another difference is that the Rome Statute does not explicitly criminalize the acceptance of an offer to commit a crime, while Belgian law does so.38 Belgian law permits the operation of standard defences recognized in municipal criminal jurisdictions, given that the contrary is not stipulated in the implementing legislation.39 First of all, the Criminal Code exonerates those suffering from dementia when they committed the offence40 and those compelled by an irresistible force to commit the offence.41 Thus, the provision in question appears to cover both mental disease, as contained in Article 31(1)(a) of the Rome Statute, and the duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm referred to in Article 31(1)(d) of the Rome Statute. Hence, Belgian law is in line with the requirements of the Rome Statute in this context. The defence of intoxication, as described in Article 31(1)(b) of the Rome Statute, is not specically included in Belgian legislation.42 However, according to the relevant case law, the defence of temporary mental incapacity that is recognized in domestic law includes intoxication, provided that it completely deprives the person of the capacity to take decisions, and that intoxication came about independently of the perpetrator’s will or fault.43 It appears that this description corresponds to the requirements of the Rome Statute. However, Article 31(1)(c) of the Rome Statute created a lively debate in Belgium as a literal reading would seem to suggest that criminal responsibility in the case of war crimes is excluded if a person acted reasonably to defend property that was essential for accomplishing a military mission.44 Belgian law, by contrast, categorically rejects this type of justication. The Criminal Code explicitly provides that necessities or interests of political, military or national nature, such as the vital necessities 37

Vandermeersch, ‘ICC Statute and Belgian Law’, supra note 8, at 139. See Art. 136septies, 2°, CC. 39 Vandermeersch, ‘The ICC Statute and Belgian Law’, supra note 8, at 141-142. 40 It should be noted that dementia includes a wide range of mental disorders and is not limited to its classical medical denition. See Christiane Hennau and Jacques Verhaegen, Droit Pénal Général (Bruylant: Brussels 2003) at 309, para. 339. 41 Art. 71, CC. 42 ‘Belgium—Belgique’, supra note 32, at 200. 43 Françoise Tulkens and Michel van de Kerchove, Introduction au Droit Pénal (Kluwer Editions Juridiques Belgique: Diegem, 1999) at 342; and ‘Belgium—Belgique’, supra note 32, at 200. 44 Vandermeersch, ‘The ICC Statute and Belgian Law’, supra note 8, at 141-142. 38

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of the nation or imperatives of combat, are excluded as grounds for defence.45 In addition, obedience to superior or governmental orders does not exclude criminal responsibility, if it was clear that such orders could lead to the commission of a crime against international law.46 The Council of State was therefore of the opinion that in this respect the Rome Statute falls behind the current standards of Belgian law and international humanitarian law.47 Consequently, the Chamber of Deputies adopted a resolution requesting an interpretative declaration on the scope of Article 31(1)(c) of the Rome Statute to be made at ratication. Accordingly, the government duly made the following declaration: In the light of Article 21(1)(b) of the Statute and having regard to the non-derogable rules of international humanitarian law, the Belgian Government considers that Article 31(1)(c) of the Statute must be applied and interpreted in accordance with these rules.48

Belgian legislation does not explicitly dene the notion of mental element or mens rea. However, the same concept has developed through case law and legal doctrine, where the mental element is known as dolus (or dol, in French), a term inherited from Roman law which corresponds to the criminal intent, resolve or state of mind required to commit an offence.49 Belgian legal doctrine establishes three categories of intent relating to the consequence of the actions of the perpetrator: direct dolus (dol direct), indirect dolus (dol indirect) and eventual dolus (dol eventuel). In case of direct dolus, the perpetrator aims to achieve a particular result.50 A person is acting with indirect dolus if he 45

See Art. 136octies (1), CC. Art. 136octies (2), CC. However, it should be mentioned that the wording of this provision does not seem to preclude the use of self-defence in the traditional sense when it is limited to the protection of persons (rather than when it is used in the context of the protection of property which is essential to the accomplishment of a military mission). As argued by Vandermeersch, ‘it does not a priori exclude the classic grounds for excuse of self-defence or necessity, provided that the stringent prerequisites for the application of these defences are fullled.’ See Vandermeersch, ‘The ICC Statute and Belgian Law’, supra note 8, at 142, footnote 52. 47 Avis du Conseil d’État du 21 avril 1999 sur un projet de loi «portant assentiment au Statut de Rome de la Cour pénale internationale, fait à Rome le 17 juillet 1998», Document parlementaire 2-239 (1999/2000), at 94. For an English translation, see ‘Opinion of the Council of State of 21 April 1999 on a legislative proposal approving the Rome Statute of the International Criminal Court‘, in International Committee of the Red Cross, International Humanitarian Law—National Implementation—National Case Law, accessible via <www.icrc.org/ihl-nat.nsf> (visited 13 September 2006). 48 As translated in Vandermeersch, ‘ICC Statute and Belgian Law’, supra note 8, at 143. For the original version in French, see the Moniteur belge, 1 December 2000, at 40423. 49 Tulkens and van de Kerchove, Introduction au Droit Pénal, supra note 43, at 344. 50 Hennau and Verhaegen, Droit Pénal Général, supra note 40 at 321, para. 351. 46

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accepts the fact that the act will be committed, without explicitly wanting to commit it.51 In the case of eventual dolus, the person accepts only the possibility that the act will be committed. Although the concept of mental element of crime in Belgian law is differently phrased, it is in conformity with Article 30 of the Rome Statute. As with the mental element, the notion of mistake is not explicitly regulated in legislation but has developed through case law. Furthermore, mistakes of law and fact are no longer distinguished in Belgian law.52 In order to qualify as a defence, a mistake must be unavoidable (invincible) in the sense of force majeure, in which case the person is considered to have acted without knowledge and intent.53 This, in turn, nullies the wilful character of an offence according to the rule nulla poena sine culpa.54 In this respect, Belgian law appears to be compatible with Article 32 of the Rome Statute. The Criminal Code stipulates that a provision of law that creates a new crime is without retroactive effect.55 It follows that the provisions of the implementing legislation can only be applied to conduct that occurred before its enactment if such conduct constituted an offence under existing domestic legislation or under directly applicable international law. This will usually be the case in Belgium, given that there was already fairly exhaustive legislation relating to grave breaches of international humanitarian law before the entry into force of the Rome Statute. Offences that, at the time of commission, constituted ordinary crimes, e.g. murder, torture or taking of hostages, could conceivably be punished as international crimes. However, the sentence imposed could not be more severe than the one applicable for that particular ‘ordinary offence’ at the time the offence was committed. Finally it should be noted that Belgium is not a Party to the 1968 Statutory Limitations Convention,56 nor is it a Party to the 1974 European Statutory Limitations Convention.57 Nonetheless, domestic law explicitly stipulates that the ‘core crimes’ are not subject to a statute of limitation.58 51

‘Belgium—Belgique’, supra note 32, at 196. Tailleurs de Binche, Court of Cassation, 10 July 1946, Pas., I. 293, <www.droit.fundp.ac.be/cours/pen/ textes/Cass10juil1946.pdf> (visited 20 August 2006); Françoise Tulkens and Michel van de Kerchove, Introduction au Droit Pénal (Kluwer Editions Juridiques Belgique: Diegem, 1999) at 336. 53 ‘Belgium—Belgique’, supra note 32, at 201. 54 Hennau and Verhaegen, Droit Pénal Général, supra note 40, at 324, para. 355. 55 Art. 2, CC. 56 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, New York, 26 November 1968, in force 11 November 1970, 754 United Nations Treaty Series 73. 57 European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes, Strasbourg, 25 January 1974, in force 27 June 2003, Council of Europe Treaty Series No. 82. 58 Art. 91, CC and Art. 21, subpara. 1, Preliminary Title of the CCP. 52

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4. Preconditions for the Exercise of Jurisdiction Under Belgian law, the ne bis in idem principle applies to facts, not offences. Accordingly, ‘[t]he accused who has been acquitted by a court of assize cannot be prosecuted again for the same facts, regardless of their legal description’.59 Although formulated in relation to the courts of assize, i.e. courts for serious offences where trials are conducted by jury, it is generally accepted that this principle will apply to all judgments.60 The principle applies only when the judgment of a criminal court has become nal and irrevocable; in such a case it prohibits the initiation of subsequent (preliminary) investigations. However, if an offence is considered to be connected to facts for which a person has already been convicted, then a conviction for this new offence is possible, but the subsequent sentence must take into account the earlier one.61 There is no exception from this principle with respect to convictions or acquittals by the ICC. The Belgian Constitution grants immunities and provides special procedural rules which attach to the ofcial capacity of certain nationals.62 First, the King benets from an absolute immunity, which applies to acts committed in the course of, or outside of, his duties.63 Second, Members of Parliament cannot be prosecuted with regard to opinions expressed or votes cast in the exercise of their duties.64 Moreover, members of Parliament cannot be prosecuted nor arrested during a session, unless this was previously authorized by the Chamber to which they belong, or if they were found committing, attempting to commit or just having committed an offence.65 Third, neither ministers nor federal Secretaries of State may be prosecuted on account of opinions expressed in the exercise of their duties.66 The same applies, mutatis mutandis, to

59

Art. 360, Code d’Instruction Criminelle, Livre II, Titre II (Art. 217 à 406) (CCP, Book II, Title II (Art. 217 to 406)), 9 December 1808, available at <www.juridat.be/cgi_loi/legislation.pl> (visited 17 August 2006), as translated in Tom Vanderbeken, Gert Vermeulen and Tom Onega, ‘Belgium – Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem”’ in XVIIth International Congress of Penal Law, Preparatory Colloquium, Section IV, Concurrent National and International Criminal Jurisdiction and the Principle ‘Ne bis in idem’, June 1-4, Berlin (Germany), 73 International Review of Penal Law (2002) 811-848 at 811. 60 Vanderbeken, Vermeulen and Onega, ‘Ne bis in idem’, supra note 59, at 811. 61 See ibid., at 814. 62 For a discussion of the difculties resulting from the ratication of the Rome Statute in relation to immunities see Céline Morel, ‘L’immunité du Chef de l’Etat: une notion constitutionnelle remise en case sous l’inuence du droit international?’, 7 Chroniques de Droit Public (2003) 43-63. 63 Art. 88, Constitution. 64 Art. 58, Constitution. 65 Art. 59, Constitution. 66 Arts 101(2) and 104(4), Constitution.

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members of Community or Regional Governments and regional Secretaries of State.67 While in ofce, ministers can only be prosecuted and tried in the Courts of Appeal (cour d’appel); after they have left ofce, the same applies to offences they may have committed in the course of their duties.68 However, the Chamber of Representatives must give its approval if a minister is summoned to court or if he or she is arrested, except in cases where he or she was found committing, attempting to commit or just having committed an offence.69 These immunities and special procedural rules can only be amended when the federal legislative power declares that a constitutional revision should take place. Following such a declaration, the two Houses of Parliament are dissolved and two new Houses are convened. These new Houses of Parliament, with the assent of the King, then decide on the amendment. In this case, the Chambers may debate only if twothirds of the members composing each Chamber are present; and no change may be adopted unless approved by a two-thirds majority.70 At the time of the ratication of the Rome Statute, the Belgian government contemplated the possibility of amending the relevant constitutional provisions. However, it decided to proceed with the ratication and to consider any constitutional amendments later. In its Opinion of 21 April 1999, the Council of State found that Article 27 of the Rome Statute is inconsistent with the provisions of the Belgian Constitution that prescribe these immunities,71 but that it does not contravene provisions that authorize the King to reduce sentences and give pardons.72 The Council of State also suggested that these provisions should be amended and that another provision could be inserted in the Constitution which would state that ‘[t]he Statute of the International Criminal Court, concluded in Rome on 17 July 1998 is binding upon Belgium‘.73 In relation to immunities of foreigners, the 1993 Grave Breaches of IHL Act (as amended in 1999) used to provide that an international immunity attaching to the ofcial capacity of a person did not preclude prosecution for violations of humanitarian law.74 Following the Yerodia decision, where the International Court of Justice held that the immunity of a minister of foreign affairs continues to apply during the course of his duties 67

Arts 124 and 126, Constitution. Art. 103(1), Constitution. 69 Art. 103(5), Constitution. This would obviously also apply if they were found committing, attempting to commit, or just having committed crimes falling under the ICC’s jurisdiction. 70 Art. 195, Constitution. 71 Arts 58, 59, 63 and 120, Constitution. 72 Arts 110 and 111, Constitution. See further ‘Opinion of the Council of State of 21 April 1999’, supra note 47. 73 Ibid. 74 See Art. 5(3), 1993 Grave Breaches of IHL Act. 68

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even when he is accused of such violations,75 Belgium had to review its legislation. The 2003 Grave Breaches of IHL Act introduced a provision into the Preliminary Title of the Code of Criminal Procedure, explicitly prohibiting the prosecution of a head of state, a head of government or a minister of foreign affairs while exercising their functions and other persons that hold immunity recognized by international law or a treaty that binds Belgium.76 This refers, for instance, to immunities enjoyed by diplomatic and consular staff under the 1961 and 1963 Vienna Conventions,77 to which Belgium is a party. In addition, the Constitution enshrines the King’s right to annul or to reduce sentences pronounced by judges; exceptionally, a minister or a member of a Community or Regional government condemned by the Court of Appeal may be pardoned only at the express demand of the Chamber of Representatives or of the Council concerned.78 The implementing legislation did not introduce an exception to the application of national and foreign immunities and special procedural rules for the purposes of arrest and surrender to the ICC.79 According to the Council of State, Article 27 of the Rome State is incompatible with these immunities and special procedural rules, as the ICC can easily override them.80 In this context, it should also be mentioned that Belgium has not granted any amnesties for crimes that would fall under the jurisdiction of the ICC.

5. Offences against the Administration of Justice According to the 2004 Cooperation Act, any offence against the administration of justice of the ICC, as contained in Article 70(1)(a–f) of the Rome Statute, is punishable by ve months to six years of imprisonment and/or a ne from 50 to 100,000 Euros.81 Here, Belgian law complies with the Rome Statute.

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Arrest Warrant case, supra note 21. Art. 1bis, 1, Preliminary Title of the CCP. See also Pierre D’Argent, ‘Les nouvelles règles en matières d’immunité selon la loi du 5 août 2003’, 30 Revue de Droit de l’U.L.B (2004) 191-209. 77 Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, in force 24 April 1964, 500 United Nations Treaty Series 95; Vienna Convention on Consular Relations, Vienna, 24 April 1963, in force 19 March 1967, 596 United Nations Treaty Series 262. 78 Arts 110 and 111, Constitution. 79 ‘In conformity with International Law, prosecution of the following persons is excluded: heads of state, heads of government and ministers of foreign affairs from other countries, in the course of their duties, as well as persons whose immunities are guaranteed under International Law; persons who have a partial or total immunity under a treaty which binds Belgium.’ Art. 1bis, 1, Preliminary Title of the CCP. 80 ‘Belgium—Belgique’, see supra note 32, at 177. 81 Art. 41, 2004 Cooperation Act. 76

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6. Discretion of the Prosecution The Federal Prosecutor has the exclusive authority to initiate an investigation of, and to prosecute, crimes that are covered by the Rome Statute and subject to territorial and active personality jurisdiction.82 Following an investigation, the Federal Prosecutor has the discretion to prosecute or to dismiss the case, as there is no absolute obligation to bring the case to trial. This does not impede civil parties from aiding the initiation of proceedings by lodging a complaint with the investigating judge (juge d’instruction).83 Once a valid complaint has been lodged by a civil plaintiff, the Federal Prosecutor no longer has the discretion to prosecute and the prosecution is then initiated by the civil plaintiff.84 As regards crimes covered by the Rome Statute which fall under passive personality and universal jurisdiction, the Preliminary Title of the Code of Criminal Procedure provided until recently that prosecution could only be initiated at the federal prosecutor’s request and that his decision was nal.85 Civil plaintiffs could not initiate a prosecution, although they could le a complaint. However, the federal prosecutor could refuse to prosecute if the complaint was unfounded, inadmissible, or did not correspond to one of the offences against international humanitarian law mentioned in the Criminal Code, or could be brought before another more appropriate national or international jurisdiction (forum non conveniens). The rationale of this rule was to centralize and to coordinate the prosecution of offences falling under passive personality and universal jurisdiction, in order to minimize abuse of these procedures. The relevant provisions of the Preliminary Title of the Code of Criminal Procedure were recently considered by the Court of Arbitration.86 The court held that the Federal Prosecutor legitimately holds the ultimate authority to prosecute in cases involving passive personality and universal jurisdiction and that the limitation 82

Art. 144quater, Code judiciaire—Deuxième Partie.—L’organisation judiciaire (articles 58 à 555quater) (CCP—Second Part—Judicial organisation (Arts 58 to 555quater)), 10 October 1967, Moniteur belge, 31 October 1967, supplement. See also Alphonse Kohl and Guy Block, Code Judiciaire – Principales Conventions Internationales en Matière de Procédure Civile et Dispositions de Droit Judiciaire Contenues dans des Textes Particuliers, Textes en vigueur au 1er Janvier 2004 (Bruylant: Brussels, 2004) at 59. 83 Art. 63, CCP; David, ‘Règles de compétence’, supra note 18, at 81. See also Henri-D. Bosly, ‘La coopération judiciaire avec la cour pénale internationale’, Mélanges Jacques van Compernolle (Bruylant: Bruxelles 2004) 11-24. 84 Information received from Mr. Damien Vandermeersch on 10 January 2006. 85 Identical Arts 10, 1bis, subpara. 2 and 12bis, subpara. 2, Preliminary Title of the CCP. 86 Le recours en annulation des articles 16, 2°, et 18, 4°, de la loi du 5 août 2003 relative aux violations graves du droit international humanitaire, introduit par l’a.s.b.l. Ligue des droits de l’homme et l’a.s.b.l. Liga voor Mensenrechten, Court of Arbitration, Decision no. 62/2005 of 23 March 2005, at 14-15 (paras B.9-B.10), <www.arbitrage. be/public/f/2005/2005-062f.pdf> (visited 14 September 2006).

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imposed on civil plaintiffs to initiate a public action is justied. However, the court found that the absence of review by an independent and impartial judge of the Federal Prosecutor’s decision not to prosecute violates Belgian law. The court held that the provisions under review must be repealed and set a deadline of 31 March 2006 for their amendment. Following this decision, the relevant articles of the Preliminary Title of the CCP were amended.87 The Federal Prosecutor can now seek a declaration from the Indictments Chamber (Chambre des mises en accusation) of the Court of Appeal indicating that there is no need to prosecute due to the complaint being unfounded, inadmissible or not referring to one of the core crimes mentioned in the Criminal Code, Book II, Title 1bis.88 The Federal Prosecutor is the only one to be heard by the court. If the Indictments Chamber of the Court of Appeal nds that none of these conditions are present, it will transfer the case to an investigating judge who has territorial jurisdiction over the case. On the other hand, if the Federal Prosecutor’s decision not to prosecute is based on the consideration that the case can be brought before another more appropriate jurisdiction, then there is no possibility for the Indictments Chamber of the Court of Appeals to intervene. More generally, there also seems to be a certain control from the executive over the discretion of the Federal Prosecutor, as the Federal Prosecutor is under the authority of the Minister of Justice.89 This has been criticized because of its potential to compromise the prosecutor’s independence.90 It should be noted further that, pursuant to the Belgian Constitution, the Federal Prosecutor’s power can be restrained by the Minister who can order him or her to prosecute and issue binding directives relating to criminal policy.91 On the other hand, the Minister of Justice cannot forbid the Federal Prosecutor to prosecute an offence. In addition, the Council of State considered that, if the power of the Security Council to request the deferral of an investigation or prosecution before the ICC under Article 16 of the Rome Statute were to be construed as extending to investiga87

Loi modiant certaines dispositions de la loi du 17 Avril 1878 contenant le Titre préliminaire du Code de procédure pénale, ainsi qu’une disposition de la loi du 5 août 2003 relative aux violations graves de droit international humanitaire (The Act amending certain provisions of the Act of 17 April 1878 containing the Preliminary Title of the CCP, as well as a provision of the Act of 5 August 2003 on grave breaches of International Humanitarian Law), 22 May 2006, Moniteur belge, 7 July 2006, at 34135. 88 Amended Art. 10, 1°bis, subparas 4 and 5 as well as the amended Art. 12bis, subparas 4 and 5, Preliminary Title of the CCP. 89 Art. 143(3), CCP; see also Damien Vandermeersch, ‘Prosecuting International Crimes in Belgium’, 3 Journal of International Criminal Justice (2005) 400-421 at 409; Adrien Masset, ‘Le parquet fédéral est arrivé: plus-value pour le ministère public?’, Journal des Tribunaux (2002) 121-129 at paras 16-21. 90 Vandermeersch, ‘Prosecuting International Crimes in Belgium’, supra note 90, at 409. 91 Art. 151(1), Constitution.

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tion and prosecution by national authorities, it would be contrary to the principle of judicial independence enshrined in Article 151 of the Constitution.92 This would also be the case if Article 108 of the Rome Statute were to be construed as subjecting to the approval of the ICC the prosecution and conviction of persons already convicted by the ICC for offences committed before their trial.93 In all the types of jurisdiction mentioned above, there is no obligation for the perpetrator to be on Belgian soil and the prosecution as well as the investigation can be exercised in absentia.94

III. Cooperation with the Court 1. Implementation of the Duty to Cooperate in General Prior to the ratication of the Statute, Belgium had in place legislation regulating cooperation of national authorities with the ad hoc international criminal tribunals.95 This legislation was repealed by the 2004 Cooperation Act which codies in one instrument all provisions concerning the relations of the Belgian authorities with international criminal tribunals: Title I of this Act addresses the cooperation with the ICC, whereas Title II deals with cooperation with the ad hoc criminal tribunals.96 According to this Act, the Minister of Justice is the central authority for receiving requests from the ICC and transferring them to the judicial authorities.97 The Minister also makes decisions in case of competing requests from the ICC and states by applying Article 90 of the Rome Statute, and will notify the ICC and the states concerned.98 92

‘Opinion of the Council of State of 21 April 1999’, supra note 47. See also ‘Belgium—Belgique’, supra note 32, at 177. 93 Ibid. 94 Art. 12, Preliminary Title of the CCP. 95 Loi relative à la reconnaissance du Tribunal International pour l’ex-Yougoslavie et du Tribunal International pour le Rwanda et la Coopération avec ces Tribunaux (Law on the recognition of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda and on cooperation with these tribunals), 22 March 1996, Moniteur belge, 27 April 1996, at 10260 (hereinafter the ‘1996 International Tribunals Recognition Act’). 96 Circulaire relative à la co-opération avec la Cour pénale internationale et les tribunaux penaux internationaux (Circular on the cooperation with the International Criminal Court and other international criminal tribunals), 3 June 2005, Moniteur belge, 22 June 2005, at 28554-28572 especially at 28566. 97 Art. 5, 2004 Cooperation Act; Circulaire relative à la co-opération, supra note 96, at 28554. 98 Art. 12, 2004 Cooperation Act.

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The procedures to comply with requests for cooperation are carried out by various judicial authorities. A request for arrest or surrender is enforced by the Committals Chamber (Chambre du conseil) of the court of rst instance with territorial jurisdiction over the person’s domicile or the place where he or she is located.99 A request for provisional arrest is executed on the basis of an arrest warrant granted by the investigating judge at the place where the person concerned resides or is located.100 In case of other forms of cooperation, the Minister of Justice rst examines whether the request conforms to Article 96(2) of the Rome Statute and, if that is the case, forwards the request to the competent judicial authority.101 Requests for searches and seizures are carried out in accordance with the rules generally applicable to such procedures and without the need for the request to be judicially conrmed.102 However, the intervention of the investigating judge is necessary for the delivery of a search warrant. The competence to authorize the temporary transfer of a suspect to the ICC for identication and testimonial purposes, and to grant the status of a protected witness, lies with the Minister of Justice.103 Requests for cooperation can be addressed to the Minister of Justice using any medium capable of leaving a written record104 and in any of Belgium’s ofcial languages (French, Dutch and German) or accompanied by a translation into one of these languages. Belgian law complies with the requirements of the Rome Statute and recognizes the ICC’s legal capacity for all the cases under its jurisdiction as specied by the Rome Statute. Article 2 of the Agreement on Privileges of the International Criminal Court (‘APIC’),105 which is directly applicable in Belgium, states that the ICC ‘shall have such legal capacity as may be necessary for the exercise of its functions and the fullment of its purposes.’106 Belgian law does not create legal obstacles for the ICC to sit in Belgian territory. Furthermore, the Prosecutor may conduct on-site investigations in Belgium, although with certain restrictions. In the relevant part, the 2004 Cooperation Act stipulates as follows:

99

Art. 13(1), 2004 Cooperation Act. Art. 14(1), 2004 Cooperation Act. 101 Art. 24, 2004 Cooperation Act. 102 Art. 26, 2004 Cooperation Act. 103 See Arts 27 and 28, 2004 Cooperation Act, respectively. 104 Art. 6, 2004 Cooperation Act. 105 Agreement on the Privileges and Immunities of the International Criminal Court, New York, 9 September 2002, in force 22 July 2004, 2271 United Nations Treaty Series 3; Moniteur belge, 15 April 2005, at 16454. 106 Art. 2, Agreement on the Privileges and Immunities of the International Criminal Court. 100

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Unfortunately, at the time of writing, it is not clear how this ‘preliminary opinion’ is to be obtained. As regards the concept of ‘judicial authorities’, it appears that these would be the judicial authorities involved in the execution of the request, namely the Federal Prosecutor, if the case involves international humanitarian law issues or, otherwise, the Crown Prosecutor or the Prosecutor General.108 In any case, the rationale of this rule is to prevent the ICC from systematically using Article 99(4) of the Rome Statute to circumvent the usual cooperation procedures.109 Belgium signed the Agreement on Privileges and Immunities to the Court on 11 September 2002 and then ratied it on 28 March 2005. An act giving assent to the Agreement was passed by the Federal Parliament on 24 February 2005 and this Act constitutes implementing legislation.110 The entire text of the Agreement has been translated and reproduced in the implementing legislation, which came into effect on the 27 April 2005. Thus, Belgian implementing legislation grants the necessary privileges and immunities to the Court, its ofcials and persons participating in proceedings as required by the APIC. These immunities and privileges apply without distinction to nationals and non-nationals as Belgium did not make any statements under Article 23 of the APIC.

2. Specic Forms of Co-operation All the forms of cooperation listed in Article 93(1) (a–l) of the Rome Statute are enumerated in the 2004 Cooperation Act.111 ‘Any other type of assistance which is not prohibited by the law of the requested State’ envisaged in Article 93(1)(l) of the Rome Statute, may include, as far as Belgium is concerned, the tapping of telephone 107

Art. 32, second sentence, 2004 Cooperation Act. Information received from Damien Vandermeersch on 28 August 2006. 109 Philippe Meire and Damien Vandermeersch, ‘La coopération avec la Cour Pénale Internationale à la lumière de l’expérience de la coopération avec les tribunaux internationaux ad hoc’ in La Belgique et la Cour Pénale Internationale: Complémentarité et coopération—Actes du colloque du 17 mai 2004 (Bruylant: Bruxelles, 2004) 159–191 at 173. 110 Loi portant assentiment à l’Accord sur les privilèges et immunités de la Cour pénale internationale, fait à New York le 9 septembre 2002 (Law giving assent to the Agreement on Privileges of the International Criminal Court, New York, 9 November 2002), 24 February 2005, Moniteur belge, 15 April 2005, at 16454. 111 Art. 22, 2004 Cooperation Act. 108

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conversations, bank enquiries, transferring certain national les, questioning and confronting witnesses (this could be done by videoconference) as well as using particular methods of enquiry, such as observation.112 However, Belgian law is silent on what kind of information has to be provided by the ICC as part of a request for such ‘other type[s] of assistance’. Should there be serious reasons to believe that the execution of a request of cooperation could affect national security, the Minister of Justice may decide, having informed the ICC, to suspend any action that is necessary to execute a request until the competent national authority has reached a decision on the matter.113 When all reasonable steps have been taken to resolve the matter and there is no possible solution, the Minister of Justice shall inform the ICC that the request cannot be executed pursuant to Article 72(6) of the Rome Statute. It may be concluded that, in its current state, Belgian law conforms to the requirements of the Rome Statute in matters discussed in this section. However, it should be noted that the implementing legislation does not expressly provide for an obligation of the national authorities to consult with the ICC in case of difculties with the execution of a request. It can be argued, though, that the ratication of the Rome Statute, and the fact that it can be applied directly in domestic law, entail such an obligation of consultation.

3. Arrest and Surrender The Belgian government recognizes that no grounds exist for the refusal of surrender to the ICC. The usual grounds for refusal that apply in extradition proceedings (nationality, political nature of the crime, sentence applicable) cannot be invoked vis-à-vis the ICC.114 There are no provisions in the applicable national procedure that might create unnecessary obstacles to the execution of a request for arrest and surrender. In particular, there is no need to provide any documents additional to those specied in Article 91(2)(a) and (b) of the Rome Statute to support a request for arrest and surrender pursuant to Article 91(2)(c); in fact, the implementing legislation explicitly refers to Article 91 of the Statute, without any further details.115 Although the obligation to execute requests ‘without delay’, as provided for in Article 59(2)(c) of the 112

Meire and Vandermeersch, ‘La coopération avec la Cour Pénale Internationale’, supra note 109, at 173. 113 Art. 31, 2004 Cooperation Act. 114 Circulaire relative à la coopération, supra note 96, at 28566. 115 Art. 13(2), 2004 Cooperation Act.

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Rome Statute, has not been copied to Belgian law, there are strict deadlines set for the execution of such a request.116 There are provisions in implementing legislation providing that an arrested person will be brought before the Chambre du conseil in order to verify that the person arrested is the person specied in the warrant and that all the necessary documents have been led.117 This corresponds to the requirements contained in Articles 59(2)(a) and (b) of the Rome Statute relating to the identication of the person and the observance of a ‘proper process’ for arrest. As regards Article 59(2)(c), which seeks to safeguard the rights of the person arrested, it is explicitly provided in the implementing legislation that the Belgian government must respect the European Convention on Human Rights when transferring a person to the ICC.118 It should be noted that the Federal Prosecutor may arrest a person for no more than 24 hours; in order to keep a person in custody longer, an investigating judge must deliver a (provisional) arrest warrant.119 As soon as the Minister of Justice is informed by the investigating judge about a provisional arrest, he or she immediately informs the ICC and invites it to present a request for arrest and surrender.120 A person placed under provisional arrest can be released if the ICC does not submit the request for surrender or the documents supporting the request within three months from the provisional arrest.121 This exceeds the requirements of Article 92(3) of the Rome Statute and Rule 188 of the ICC Rules on Procedure and Evidence according to which a person may be released if the required documents have not been received in 60 days. The person placed under provisional arrest has the right to petition the Indictments Chamber of the Court of Appeal for interim release pending transfer as stipulated in Article 59(3) of the Rome Statute.122 The Indictments Chamber then determines whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify an interim release and whether necessary safeguards exist to ensure that it can full its duty to surrender the person to the ICC.123 The Minister of Justice must inform the ICC Pre-Trial Chamber of any requests for interim release, so as to allow it to make any appropriate recommendations, as required by Article 59(5)

116

See Art. 13, 2004 Cooperation Act. Art. 13(2), 2004 Cooperation Act. 118 Art. 18(2), 2004 Cooperation Act. 119 Art. 12(3), Constitution; see also Art. 14(2), 2004 Cooperation Act. 120 Art. 14(3), 2004 Cooperation Act. 121 Art. 15, 2004 Cooperation Act. 122 Art. 16(1), 2004 Cooperation Act. 123 Art. 16(3), 2004 Cooperation Act. 117

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of the Rome Statute.124 The Indictments Chamber must take such recommendations fully into consideration, and if it departs from them, it must state the reasons for its decision. It should be emphasized that the Rome Statute sets up detention as the general rule for persons awaiting trial. Pursuant to Article 12 of the Belgian Constitution, no one can be arrested for more than 24 hours, unless by an order of the investigating judge (which must be served at the moment of the arrest). Given that this period of detention can be extended, it therefore seems to comply with the requirements of the Rome Statute. No order of the investigating judge would be necessary if a person was found committing, attempting to commit or just having committed an offence. Under ordinary criminal law, there are two possible types of arrest: judicial arrest and administrative arrest. As regards judicial arrest, the Pre-Trial Detention Act125 enables a judicial police ofcer to arrest a suspect when he or she was found committing, attempting to commit or just having committed an offence. Theoretically, the investigating judge and the Crown Prosecutor are the only ofcials empowered to issue an arrest warrant.126 The Act does, however, allow law enforcement ofcers who are not judicial police ofcers to carry out arrests under certain specic conditions. These ofcers have no actual powers of arrest and will merely take protective measures to bring the suspect immediately before a judicial police ofcer who will proceed to the arrest.127 The judicial police will then report the arrest to the Crown Prosecutor and follow his instructions.128 The investigating judge is required to inform the accused of his right to choose a lawyer, but the person arrested may not meet with a lawyer until he has been questioned by the investigating judge.129 Such detention cannot last more than 24 hours and, within this time, the investigating judge must either issue an arrest warrant or release the person concerned. As part of the administrative arrest procedures, the Police Functions Act130 authorizes a police ofcer, in case of absolute necessity, to arrest a person who is causing an obstruction, causing an actual breach of the peace or preparing to commit 124

Art. 16(2), 2004 Cooperation Act. Loi relative à la détention préventive (Pre-Trial Detention Act), 14 August 1990, Moniteur belge, 1 December 1990, at 15779; see in particular Art. 1. See also Fourth Periodic Report Submitted by Belgium under Article 40 of the International Covenant on Civil and Political Rights, United Nations Human Rights Committee, CCPR/C/BEL/2003/4, 16 May 2003, at 42–44. 126 Arts 16–20, Pre-Trial Detention Act. 127 Art. 1(2), Pre-Trial Detention Act; Fourth Periodic Report, supra note 125, at 43. 128 Art. 1(4), Pre-Trial Detention Act; Fourth Periodic Report, supra note 125, at 43. 129 Arts 16(4) and 20, Pre-Trial Detention Act. 130 Loi sur la fonction de la police (Police Functions Act), 22 December 1992, Moniteur belge, 1 January 1993, at 27124; see in particular Arts 31–33. 125

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certain offences. The Act also allows administrative arrests when dispersing crowds in the context of the maintenance and restoration of public order.131 Administrative arrest cannot last longer than the circumstances warranting it, and it cannot exceed twelve hours. Where a person is put under both administrative and judicial arrest for the same acts, the duration of the administrative arrest is included in the 24-hour period of deprivation of liberty to be taken into consideration in application of the Pre-trial Detention Act. A police ofcer who has made an administrative arrest is obliged to inform as soon as possible the administrative police ofcer to whom he reports. It should be emphasized that these rules would not apply in case of a request for arrest and surrender made by the ICC. In fact, the 2004 Cooperation Act mentions that Belgium executes the ICC’s requests for arrest and surrender pursuant to Article 89 of the Statute132 and in that case the procedures specied by the Statute would apply. The implementing legislation stipulates that surrender to the ICC can be challenged before a national court on the basis of the ne bis in idem principle.133 In such a case, the Minister of Justice will seek to obtain a ruling on admissibility from the ICC. Until such a ruling, proceedings before Belgian authorities are suspended. The provision in domestic law dealing with the transit of persons being surrendered to the ICC is vague, but a Circular issued by the Ministry of Justice explains that the person on surrender will be held in custody during her transit, as required by Article 89(3)(c) of the Rome Statute.134 On the other hand, Article 97 of the Rome Statute, which regulates consultations between national jurisdictions and the ICC in these matters, has no equivalent in Belgian legislation. There is no provision in Belgian legislation that requires the national authorities to enter into consultations with the ICC if the arrested person has been convicted or if a procedure is going on against him or her for crimes different from those under investigation (Article 89(4) of the Rome Statute). Belgium has refused to sign bilateral immunity agreements with other states. As mentioned above, the Constitution grants immunities and provides special procedural rules for the King, the members of Parliament, federal and regional Secretaries of State, ministers, as well as members of Community or Regional Governments.135 131

Art. 22, Police Functions Act. Art. 11, 2004 Cooperation Act. 133 Arts 13(5), 14(4) and 14(5), 2004 Cooperation Act; see also Circulaire relative à la co-opération, supra note 96, at 28566. 134 See Art. 20, 2004 Cooperation Act; cf. Circulaire relative à la co-opération, supra note 96, at 28561. 135 Supra notes 63-72 and accompanying text. 132

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There are no provisions in Belgian law for the case where the Security Council refers a situation to the ICC in accordance with Article 13(b) of the Rome Statute. The fact that the ICC may impose life imprisonment or imprisonment for up to 30 years pursuant to Article 77(1) of the Rome Statute does not prevent Belgium from executing a request for surrender. In fact, the corresponding article 136quinquies of the Criminal Code sets the same limits on the sentences imposed for crimes under the ICC’s jurisdiction.

4. Enforcement of Sentences Belgium has not received prisoners from the ICTY or the ICTR but has indicated its willingness to accept prisoners from the ICC. Pursuant to the 2004 Cooperation Act, in order to accept prisoners, Belgium must be on a list of countries willing to accept prisoners.136 The Minister of Justice indicated during parliamentary debates that Belgium would be part of the list.137 By the time of writing, there have been no further developments. However, the relevant articles of the Rome Statute have been duly implemented.138 According to the 2004 Cooperation Act, Belgium will give effect to nes or forfeitures ordered by the ICC under Part IV of the Rome Statute, without prejudice to the rights of bona de third parties, as required by Article 109 of the Statute.139

IV. Conclusion Belgium is an example of a country that has taken its international obligations very seriously and created an exemplary legal framework for the prosecution of international crimes. Before the enactment of the 2003 Grave Breaches of IHL Act, ideal conditions existed in Belgium to carry out prosecutions for international crimes. Belgian law provided for absolute universal jurisdiction and prohibited the application of immunities attaching to the ofcial capacity when a person was prosecuted for violations of humanitarian law. In addition, civil plaintiffs could initiate a public prosecution by ling 136

Art. 33, 2004 Cooperation Act. See Circulaire relative à la co-opération, supra note 96, at 28564; Doc. Sénat 478/3, 2003/2004, at 27. 138 Arts 105, 108 and 111 of the Rome Statute have been duly implemented in Arts 35(1), 36 and 39 of the Act of 29 March 2004, respectively. Art. 36 of the Act 2004 Cooperation Act phrased differently from Art. 108 of the Rome Statute. It stipulates that, within the limits allowed by Art. 108 of the Rome Statute, Belgium can extradite or surrender (in accordance with its legislation) a prisoner that has served his full sentence to another State or International Tribunal requesting his surrender or extradition. 139 Art. 40, 2004 Cooperation Act. 137

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a complaint. Inevitably, this gave rise to the ling of a large number of complaints regarding international crimes and initiated a period of intense litigation.140 Several world leaders and ofcials, including Ariel Sharon, Hissène Habré, Yerodia Ndombasi, and Augusto Pinochet, were prosecuted in Belgian courts.141 With increasing diplomatic pressure, this legal landscape changed substantially and gave way to a more limited, but still quite progressive, framework for prosecution of international crimes. Although far less courageous, a new episode in the Belgian experience of prosecuting international crimes began when the Rome Statute was implemented. While the process of implementation of the Rome Statute, in relation to both complementarity and cooperation, has been generally thorough and exhaustive in Belgium, some incompatibilities with the international requirements remain. Signicantly, there was no exception made in Belgian law in relation to the application of immunities attaching to an ofcial capacity of nationals and foreigners in the case of requests for arrest and surrender by the ICC. This inadequacy could seriously impede future prosecution efforts. Furthermore, Belgian law requires a higher standard of proof in relation to command responsibility, which may hamper the prosecution of military commanders and other superiors. It should also be noted that the provisions regarding defences in Belgian law do not fully correspond to the requirements of the Statute. This, however, is due to the Council of State’s nding that the relevant Article falls behind the current standards of Belgian law as well as international humanitarian law, and that the existing Belgian legislation should not be changed. At the same time, Belgian law appears to go further that the Rome Statute in some respects. For instance, the criminalization of war crimes as well as various forms of participation is more exhaustive than under the Statute, and it provides a greater protection to the victim.

140

An illustrative example of this is the Yerodia decision: see Arrest Warrant case, supra note 21. On 11 April 2000, a Belgian judge issued an international arrest warrant against Mr. Yerodia Ndombasi, the Congolese Minister of Foreign Affairs at the time, for war crimes and crimes against humanity allegedly perpetrated in Democratic Republic of Congo since 1997. The International Court of Justice quashed the international arrest warrant and concluded that Ministers of Foreign Affairs were immune from prosecution for IHL crimes. In this case, it appears that Belgium was willing to go even further than the ICJ in the prosecution of international crimes. 141 For further information see Vandermeersch, ‘Prosecuting International Crimes in Belgium’, supra note 90.

Implementation of the Rome Statute in Estonia Rain Liivoja,* René Värk** and Merri Kastemäe***

I. Introduction Estonia signed the Rome Statute of the International Criminal Court1 on 27 December 1999 and ratied it on 30 January 2002. Unlike in many other states, there have been no major domestic measures to implement the Statute. Two main reasons can be identied to account for this fact and should remain in the background when considering the analysis presented in this article. Firstly, the Estonian legal system is generally very ‘open’ to international law. According to the Constitution, ‘generally recognized principles and rules of international law’ form an ‘inseparable part’ of the Estonian legal system.2 This effectively incorporates customary international law and the general principles of law recognized by the community of nations into domestic law, arguably at a level equal to the Constitution.3 The Constitution further provides that, should laws or other legal Acts of *

Research Fellow, Centre of Excellence in Global Governance Research, University of Helsinki; Lecturer in International Law, University of Tartu. ** Lecturer in International Law, and Director for Academic Affairs of the Institute of Law, University of Tartu. *** Master’s Student in Law, University of Tartu. The authors would like to thank Andres Parmas, Jaanus Tehver, Tõnu Pihelgas and Matthias Goldmann for helpful comments on earlier drafts of this paper, as well as Agur Maandi for research carried out in the early stages. Needless to say, the opinions expressed and possible mistakes made remain the sole responsibility of the authors. Developments in domestic law are reected up to 1 June 2007. 1 Rome Statute of the International Criminal Court, Rome, 17 July 1998, in force 1 July 2000, 2187 United Nations Treaty Series 90 (hereinafter also ‘RS’). 2 Section 3(1), Eesti Vabariigi põhiseadus (Constitution of the Republic of Estonia, hereinafter ‘Constitution’), 28 June 1992, in force 3 July 1992, Riigi Teataja [vol.] 1992, [issue] 26, [entry] 349 (original text) … 2007, 33, 210 (latest amendment); see infra note 18 concerning English translations of Estonian legislation. 3 For a discussion, see Hannes Vallikivi, ‘Domestic Applicability of Customary International Law in Estonia’, 7 Juridica International (2002) 28–38, especially at 34–36.

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Estonia be in conict with a treaty approved by the Estonia parliament (Riigikogu), the provisions of the treaty shall prevail.4 Judicial practice reveals, moreover, that treaties can be directly applied in the domestic legal order even if there is no conict with domestic law.5 However, treaties are not regarded as prevailing over the Constitution.6 In sum, given that the Rome Statute is a treaty approved by the Riigikogu, it forms a part of the Estonian legal system and prevails over all domestic law with the exception of the Constitution. Therefore, there is no apparent need to duplicate provisions of the Statute in domestic law, at least as far as provisions of a self-executing nature are concerned. Secondly, there is a detectable preference for codications in domestic law, especially criminal law. A stand-alone act for the implementation of the Rome Statute would have stood out as an anomaly of sorts. In addition, a new Penal Code was adopted prior to the ratication of the Statute, codifying international crimes in domestic law (and seeking to dene them while avoiding references to international law).7 Since the ratication, a new Code of Criminal Procedure has also been adopted, which regulates all issues of international cooperation in criminal matters, including cooperation with the Court.8 Hence, the only separate legal instrument that has relevance to the present discussion is an Act adopted by the Riigikogu in late 2001 to approve the Statute for ratication.9 This Act stipulates that requests for surrender by the Court should be fullled in accordance with the provisions of the Code of Criminal Procedure dealing with extradition to foreign states, an approach that is explicitly reected in the new Code itself.10

4

Section 123(2), Constitution. See Martinson v. Lihula Rural Municipality, Case No. 3-3-1-58-02, Supreme Court, Judgement of 20 December 2002, Riigi Teataja III 2003, 2, 19, at para. 11 (no English translation available). 6 Eesti Vabariigi põhiseadus: kommenteeritud väljaanne (Constitution of the Republic of Estonia: Commentaries) (Juura: Tallinn, 2002) at 550–551. 7 Karistusseadustik (Penal Code, hereinafter PC), 6 June 2001, in force 1 September 2002, Riigi Teataja I 2001, 61, 364 … 2007, 16, 77. 8 Kriminaalmenetluse seadustik (Code of Criminal Procedure, hereinafter also ‘CCP’), 12 February 2003, in force 1 July 2004, Riigi Teataja I 2003, 27, 166 … 2007, 23, 119. 9 Rahvusvahelise Kriminaalkohtu Rooma Statuudi ratitseerimise seadus (Ratication of the Rome Statute of the International Criminal Court Act), 5 December 2001, in force 19 January 2002, Riigi Teataja (State Gazette) II 2002, 2, 5 (no English translation available). Another Act adopted at the same time made certain amendments to the Code of Criminal Procedure in force at that time, concerning cooperation with the Court: Kriminaalmenetluse koodeksi täiendamise seadus (An Act to Amend the Code of Criminal Procedure), 5 December 2001, in force 6 January 2002, Riigi Teataja I 2001, 100, 645 (no English translation available). 10 See infra note 112 and accompanying text. 5

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II. Complementarity 1. General Principles of Jurisdiction First and foremost, Estonian penal law applies to all acts committed within the territory of Estonia and on board or against its ships and aircraft.11 In addition, subject to the rule of double criminality, Estonian law applies to acts committed abroad by or against Estonian citizens or by foreigners who are arrested in Estonia and not extradited.12 Irrespective of the laws of the place of commission, Estonian law can also be applied to certain acts committed against the Republic of Estonia, namely acts against the life and health of its population, its state authority, its national security, and the environment.13 Under the heading of ‘interests protected by international law’, the Penal Code stipulates that Estonian penal law applies regardless of the place of commission of an act (or the perpetrator’s nationality) if criminal liability for the act arises from a binding international agreement.14 This provision, which clearly seeks to establish universal jurisdiction, is conceptually unsound in that it completely disregards customary law as a source of international criminal law. Admittedly, the explicit reference to treaties might have been the result of concerns for the principle nulla poena sine lege scripta. However, such concerns could have been better addressed by listing all crimes to which universal jurisdiction applies in the Penal Code. Nevertheless, in case of the core crimes no signicant consequences ensue from this decit, since genocide, crimes against humanity and war crimes are criminalized in treaty law, including the Rome Statute itself.15

2. Core Crimes Estonia acceded to the 1948 Genocide Convention on 19 January 1992.16 Genocide, along with crimes against humanity and war crimes, was rst criminalized under Estonian

11

The principle of territoriality, Section 6, PC. The principles of active and passive personality and vicarious administration of justice, Section 7(1), PC. Double criminality is not required if the perpetrator is a member of an Estonian military contingent, Section 7(2), PC. 13 The protective principle, Section 9, PC. 14 Section 8, PC. 15 On the issue of the presence of the accused see infra notes 101–102 and accompanying text. 16 Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948, in force 12 January 1951, 78 United Nations Treaty Series 277. 12

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law in 1994 by an amendment to the Criminal Code in force at the time.17 Currently, genocide is punishable pursuant to Section 90 of the Penal Code: Killing, torturing or causing health damage to a member of a national, ethnical, racial or religious group, a group resisting occupation or any other social group, imposing coercive measures preventing childbirth within such a group or forcibly transferring children of the group—when committed with the intention to destroy said group in whole or in part—, or subjecting members of such a group to living conditions which have brought about the danger for the total or partial physical destruction of the group, shall be punishable by imprisonment for a term from 10 to 20 years or by life imprisonment.18

This denition differs considerably from that of Article 2 of the Genocide Convention and Article 6 of the Rome Statute. First, the range of protected groups is broader under Estonian law, since any social group is covered. The legislator has made a further point of explicitly including groups resisting occupation. Secondly, instead of considering ‘serious bodily or mental harm’ (Article 6(b) of the Statute) an act that may constitute genocide, the Penal Code refers to the causing of ‘health damage’, a somewhat broader category.19 Thirdly, unlike Article 6(c) of the Statute, which considers the deliberate iniction of conditions of life on a group ‘calculated to bring about its physical destruction’ as a form of genocide, the Penal Code criminalizes the iniction of conditions that ‘have brought about the danger for the … destruction of the group’. It would seem that whereas under the Statute the intent is central, under the Code the determining factor is the actual presence of the danger of destruction.20 17

Eestis inimsusevastaseid kuritegusid või sõjakuritegusid toimepannud isikute kriminaalvastutuse seadus (Act on the Criminal Liability of Persons who Have Committed Crimes against Humanity or War Crimes in Estonia), 9 November 1994, in force 9 December 1994, Riigi Teataja I 1994, 83, 1447 (no English translation available); Section 61prim, Kriminaalkoodeks (Criminal Code), 7 May 1992, in force 1 June 1992, Riigi Teataja 1992, 20, 287/288 … I 2002, 44, 284 (dening crimes against humanity so as to include genocide); repealed 1 September 2002, Riigi Teataja I 2002, 56, 350. 18 Unofcial English translations of Estonian Acts are available from the Estonian Legal Language Centre, <www.legaltext.ee/indexen.htm>. Unless stated otherwise, translations used in this article derive from this source with corrections the authors considered necessary. 19 ‘Health damage’ means any violation of the integrity of the human body or disturbance of the functioning thereof by an external factor—this covers bodily injuries as well as illnesses, including mental disorders. See Jaan Sootak, Isikuvastased süüteod (Offences against the Person) (Juura: Tallinn, 2003) at 63; Jaanus Tehver, ‘§ 90’ in Jaan Sootak and Priit Pikamäe (eds), Karistusseadustik: kommenteeritud väljaanne (Penal Code: Commentaries) (2nd edn, Juura: Tallinn, 2004) 265–266 at 265; Margus Kurm, ‘§ 118’ in Sootak and Pikamäe, Karistusseadustik, 306–310 at 306. An act that may cause a bodily health damage also qualies, see Margus Kurm, ‘§ 121’ in Sootak and Pikamäe, Karistusseadustik, 314–316 at 314. 20 Other commentators have considered this a mere linguistic difference. See Andres Parmas and Tristan Ploom, ‘Prosecution of International Crimes in Estonia’ in Albin Eser, Ulrich Sieber and Helmut Kreicker

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Notwithstanding the last observation, the crime of genocide has been properly included in Estonian penal law, and in some respect arguably reaches even further than international law as it currently stands. As regards crimes against humanity, Estonia is a party to a number of international instruments imposing the obligation to criminalize conduct falling under Article 7 of the Statute.21 The relevant provision of domestic criminal law is Section 89 of the Penal Code: Deprivation or restriction of human rights and freedoms, as well as killing, torturing, raping, causing health damage to, forcefully displacing, expelling, subjecting to prostitution, unfoundedly depriving of liberty or otherwise abusing civilians,—when committed systematically or on a large scale and instigated or directed by a state, organization or group—shall be punishable by imprisonment for a term from 8 to 20 years or by life imprisonment.

Again, this denition does not fully correspond to that of the Statute. Estonian law criminalizes relevant acts committed at the instigation or direction of a ‘group’, not only a state or organization, thus including associations of people with a low degree of internal organization.22 It should be noted that acts committed in furtherance of a policy (cf. Article 7(2)(a) of the Statute) are not punishable as crimes against humanity unless held to have been ‘directed’ or ‘instigated’ by a group, state or organization. Here, ‘direction’ presupposes a considerable degree of control of a state, organization or group over the acts, whereas ‘instigation’ refers to a relatively specic call for those acts.23 Further, instead of comprehensively enumerating specic acts that constitute crimes against humanity, the Penal Code makes use of generalizations. The phrase ‘deprivation or restriction of human rights’ is essentially a blanket reference to Estonia’s obligations under international human rights law and to the fundamental rights and freedoms enshrined in the Constitution.24 Given the ever-increasing scope of human rights, it is highly doubtful whether all restrictions of human rights, even when systematic or large scale, may be properly deemed crimes against humanity. Moreover, the (eds), National Prosecution of International Crimes (Duncker & Humblot: Berlin, 2005), vol. 5, 89–188 at 97. 21 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, in force 26 June 1987, accession 21 October 1991, 1465 United Nations Treaty Series 85; International Convention on the Suppression and Punishment of the Crime of Apartheid, New York, 30 November 1973, in force 18 July 1976, accession 21 October 1991, 1015 United Nations Treaty Series 243. 22 See Jaanus Tehver, ‘§ 89’ in Sootak and Pikamäe, Karistusseadustik, supra note 19, 261–264 at 264. 23 Cf. ibid. 24 See Tehver, ‘§ 89’, supra note 22, at 262.

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language in question leaves the crime substantially undened to the extent that doubts arise whether it falls short of the requirements of the principle of legality. ‘Abuse of civilians’, on the other hand, is understood here as a reference to all crimes against a person which degrade human dignity (as laid down in Chapter 9 of the Penal Code).25 This seems a rather reasonable abstraction, which also serves as a fallback clause that may remedy some shortcomings this denition of crimes against humanity may otherwise have.26 Taken as a whole, Section 89 of the Penal Code includes in its scope the same acts as Article 7 of the Statute, but there are deciencies in criminalizing the various modes of commission. When it comes to international humanitarian law, Estonia acceded to the 1949 Geneva Conventions and both 1977 Additional Protocols on 18 January 1993.27 A coherent and consistent set of provisions criminalizing war crimes, although more abstractly formulated than those of the Statute, can be found in Sections 95 through 109 of the Penal Code.28 War crimes are dened in the Code without distinction between international and non-international armed conicts, and without the requirement that they take place ‘as part of a plan or policy or as part of a large scale commission of such crimes’ (Article 8(1) of the Statute). It is expressly provided that offences committed in time of war, which are not punishable as war crimes, are to be punished as ‘ordinary’ offences, those being moreover aggravated by the fact that they were committed during a state of emergency or state of war.29 Although the Penal Code thus generally covers war crimes as dened by the Statute, there are some deciencies, the most noteworthy of which are the following.30 25

See ibid. at 263. On ‘health damage’, see supra note 19 and accompanying text. For instance, torture is understood under national law as physical abuse that is continuous or causes great pain (Section 122, PC). Acts of abuse not meeting this denition may nonetheless be punished as a crime against humanity of ‘otherwise abusing civilians’ (see Parmas and Ploom, ‘Estonia’, supra note 20, at 116 and 118). 27 Geneva Conventions of 12 August 1949, in force 21 October 1950, 75 United Nations Treaty Series 31, 85, 135 and 287; Protocols I and II Additional to the Geneva Conventions of 12 August 1949, Geneva, 8 June 1977, in force 7 December 1978, 1125 United Nations Treaty Series 3 and 609. 28 Acts of war against civilian population (Section 95, PC); illegal use of means of warfare against civilians (Section 96); attacks against civilians (Section 97); unlawful treatment of prisoners of war and interned civilians (Section 98); attacks against prisoners of war and interned civilians (Section 99); refusal to provide assistance to wounded, sick, and shipwrecked (Section 100); attacks against combatants hors de combat (Section 101); attacks against protected persons (Section 102); use of prohibited weapons (Section 103); damaging the environment as method of warfare (Section 104); exploitative abuse of emblems and marks designating international protection (Section 105); attacks against non-military targets (Section 106); attacks against cultural property (Section 107); destruction or illegal appropriation of property in war zone or occupied territory (Section 108); and marauding (Section 109). 29 See Sections 94(1) and 58 clause 5, PC. 30 For a comprehensive provision-by-provision comparison and analysis, see Parmas and Ploom, ‘Estonia’, 26

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First, launching an attack in the knowledge that it will cause environmental damage is only punishable as a war crime when the environment is intentionally inuenced as a means of warfare,31 although the acts in question may also be punished as ordinary crimes.32 Second, treacherous killing or wounding33 is not punishable as a war crime. Third, declaring that no quarter will be given is not punishable as a war crime, but may be punished as threatening the life of another person.34 However, where an order has been given not to give quarter, but the threat has not been made known to those concerned, there appears to be no criminal responsibility under domestic law.35 Fourth, declaring abolished, suspended or inadmissible in court the rights and actions of the nationals of the hostile party is not punishable as a war crime, but may be punished as an ordinary crime of discrimination, or as a crime against fundamental liberties.36 Fifth, committing outrages upon personal dignity is not punishable unless it reaches the level of causing physical pain or health damage.37 Sixth, the use of human shields is not punishable as a war crime, but may be punished as an ordinary crime of endangering persons.38 Seventh, intentionally using starvation of civilians as a method of warfare is punishable as a war crime only when food or water supplies are destroyed or rendered unusable, but not when access to them is otherwise prevented;39 the theft or embezzlement of such supplies is punishable as illegal appropriation.40 Eighth, conscripting or enlisting children into the armed forces or using them to participate actively in hostilities41 is not dened as a war crime in domestic law.

supra note 20; see also Jaanus Tehver, ‘Analysis of the Conformity of Estonian Legislation with the Rome Statute’, unpublished, Estonian Ministry of Defence research paper (2003) at 3–4 (on le with the authors). 31 Compare Article 8(2)(b)(iv), RS, with Section 104, PC. 32 In particular, illegally polluting the environment. Sections 364 and 365, PC. 33 See Articles 8(2)(b)(xi) and (e)(ix), RS. 34 Compare Articles 8(2)(b)(xii) and (e)(x), RS, with Section 120, PC. 35 See Parmas and Ploom, ‘Estonia’, supra note 20, at 114 and 121. Acts of violence committed in fullment of such a threat are, of course, punishable under various other provisions of the Penal Code. 36 Compare Article 8(2)(b)(xiv), RS, with Sections 152 and 154–159, PC. 37 See Articles 8(2)(b)(xxi) and (c)(ii), RS; see also Parmas and Ploom, ‘Estonia’, supra note 20, at 116 and 118. 38 Compare Article 8(2)(b)(xxiii), RS, with Section 123, PC. 39 Compare Article 8(2)(b)(xxv), RS, with Section 95, PC; see also Parmas and Ploom, ‘Estonia’, supra note 20, at 117. 40 Section 108, PC. 41 See Articles 8(2)(b)(xxvi) and (e)(vii), RS.

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Jurisdiction for war crimes is universal under Estonian law, by virtue of the fact that criminal liability for these acts arises from international instruments binding on Estonia, in particular the Geneva Conventions and the Statute.42

3. General Principles of Criminal Law Under Estonian law, a person who commits an offence individually, or jointly with, or by taking advantage of, another person is punished as the principal offender.43 Two types of accomplices—instigators and aiders—are also punished. An instigator is a person who ‘intentionally induces’ another to commit an intentional, unlawful act, whereas an aider is a person who ‘intentionally provides physical, material or moral assistance’ for such an act.44 These stipulations generally conform to Articles 25(3)(a–c) of the Statute. However, the joint criminal enterprise doctrine, as incorporated in Article 25(3)(d) of the Statute, is recognised only in so far as the other person meets the criteria for an accomplice, i.e. where he is an instigator or an aider.45 Direct and public incitement in respect of the crime of genocide (Article 25(3)(e) of the Statute) is not punishable in Estonia as participation in the commission of genocide. Rather, it is covered by a separate crime of inciting social hatred, which includes all activities aimed at publicly inciting hatred or violence on the basis of nationality, race, colour, sex, language, origin, religion, political opinion, and nancial or social status.46 In 2006, the elements of this crime underwent change.47 Specically, sexual orientation was added to the list of discriminatory bases, and incitement leading to discrimination (not amounting to hatred or violence) was also criminalized. At the same time, the corpus delicti was narrowed by means of a condition that the incitement must have caused a threat to a person’s ‘life, health or property’. The latter change is unfortunate as it ‘raises the bar’ considerably under domestic law for holding a person responsibility for incitement to genocide. Consequently, the provision in question now fails to fully implement Estonia’s obligations under international law. 42

See supra note 14 and accompanying text. Section 21, PC. 44 Sections 22(2) and (3), PC. It has been settled in the practice of the courts that an accomplice can be punished if the principal offence has been committed or attempted; the actual conviction or punishment of the principal offender is not required (see Jaan Sootak, ‘§ 22’ in Sootak and Pikamäe, Karistusseadustik, supra note 19, 102–109 at 104). 45 Tehver, ‘Analysis’, supra note 30, at 6. 46 Section 151, PC, as in force until 15 July 2006. Under some limited circumstances, incitement to genocide could conceivably be punished as war propaganda (Section 92, PC). 47 Section 151, PC, as in force from 16 July 2006 (Riigi Teataja I 2006, 31, 234). 43

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Command responsibility for acts laid down in Chapter 8 of the Penal Code, including genocide, crimes against humanity and war crimes, is established as follows: The state ofcials or the military commander who issued the order to commit the offence, who consented to the commission of the offence or who failed to prevent the commission of the offence although it was in his or her power to do so, shall be punished in addition to the principal offender.48

This provision addresses two issues that are dealt with separately in the Statute. First, it prescribes responsibility in case the commander orders the commission of a crime—this corresponds to Article 25(3)(b) of the Statute. Second, the same provision lays down command responsibility as it appears in Article 28 of the Statute, i.e. in case of a failure to prevent the commission of the crime. In the latter case, it is somewhat unclear whether the phrase ‘in his or her power to do so’ actually presumes that the commander knew of the act or whether it is sufcient that he should have known about it.49 Apart from military commanders, the rules pertaining to command responsibility only apply to state ofcials. In principle, however, one can envisage binding orders being given by a superior who is neither a state ofcial nor a military commander.50 The limited interpretation of command responsibility may fall short of Article 28(b) of the Statute, which merely requires ‘effective authority and control’ of the superior. However, in the opinion of the Ministry of Justice, this issue may be resolved by interpreting the pertinent provision of the Penal Code in light of the language of the Statute.51 As regards defences, domestic law distinguishes between two types of grounds that exclude criminal responsibility: those precluding the unlawfulness of the act52 and those precluding the guilt of the offender.53 First, an act is not unlawful if it is carried out in self-defence, that is to say in combating a direct, or immediate, unlawful attack against oneself or another person.54 This is not applicable if the defence is carried out by means that are ‘evidently incongruous’ with the danger of the original 48

Section 88, PC. Cf. Tehver, ‘Analysis’, supra note 30, at 7; Martin Roger, ‘International Criminal Court and Its Implications to the Estonian Defence Forces’, 2 Baltic Defence Review (2003), no. 10, 65–70, at 69. 50 For instance, local government ofcials are not, strictly speaking, state ofcials under Estonian law: Jaanus Tehver, ‘§ 88’ in Sootak and Pikamäe, Karistusseadustik, supra note 19, 259–261, at 260. 51 Comments of the Ministry of Justice on an earlier draft of this paper, 11 January 2006 (on le with the authors, hereinafter ‘Ministry of Justice Memo’). 52 See Section 27 et seq., PC. 53 See Section 32 et seq., PC. 54 Section 28, PC. 49

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attack or that cause ‘excessive damage’.55 Although more general in language, these provisions are consistent with the principle contained in Article 31(1)(c) of the Statute. Furthermore, an act is not unlawful if carried out due to necessity, i.e. in order to avert a ‘direct or immediate danger’, provided that the means chosen are necessary for the aversion of the danger and the interest protected is ‘evidently of higher importance’ than the interest damaged.56 Nor is an act unlawful where a person seeks to perform several legal obligations simultaneously and, in the event this proves impossible, does everything in his power to perform the obligation which is ‘at least as important’ as the obligation violated against.57 Unlike the comparable regulation in Article 31(1)(d) of the Statute, the Penal Code does not refer expressly to a ‘threat of death or serious bodily harm’ in dening defences that may apply to crimes under the jurisdiction of the Court. However, in light of the tests outlined above for comparing the protected and discarded interests, no other circumstances than a threat of death or serious bodily harm could meet the conditions of these defences when it comes to the crimes covered by the Statute.58 Threat and duress not falling under necessity are not defences under Estonian law, but do constitute mitigating circumstances.59 Personal guilt is precluded where an accused is less than 14 years old or mentally incompetent.60 Incompetence refers here to the incapacity to understand the unlawfulness of one’s act at the time of its commission or to act in accordance with such an understanding.61 As a general rule, a state of intoxication that is caused intentionally or through negligence does not preclude guilt.62 However, a pathological state of intoxication—a rare condition where a small amount of intoxicant can temporarily provoke a grossly excessive and unusual disturbance of mental or physical capacities—is considered a temporary, severe mental disorder.63 Thus, in practice, the conditions of incapacitation are more or less the same as laid down in Article 21(1)(a) and (b) of the Statute. Acting under orders while committing an act of genocide, a crime against 55

Section 28(2), PC. Section 29, PC. The PC further stipulates that in evaluating such circumstances the importance of the legal rights, the degree of the danger by which they are threatened, and the danger arising from the act must be taken into account (ibid.). 57 Conict of obligations: Section 30, PC. 58 See also Tehver, ‘Analysis’, supra note 30, at 8. 59 Section 58 clause 5 and Section 56(1), PC 60 Section 33, PC. 61 Section 34, PC. 62 Section 36, PC. 63 See, e.g., Norman Aas, Karistusõigus: Üldosa (Penal Law: General Part) (Sisekaitseakadeemia: Tallinn, 2002) at 33. 56

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humanity or a war crime does not preclude punishment.64 Estonian law is in this sense somewhat stricter than the Statute as it does not embody the exceptions contained in Article 33. Domestic law distinguishes between three levels of intent,65 all of which are presuppose the existence of knowledge within the meaning of Article 30(3) of the Statute.66 In principle, any level of intent recognised in domestic law is sufcient for establishing responsibility for the core crimes. What may be regarded as a mistake of fact is dened as unawareness of a circumstance that constitutes a material element of an offence. This means that if a person does not know of a circumstance that renders his act an offence, he is not deemed to have committed the act intentionally and may only be held liable for negligence if this constitutes a separate offence.67 This compares favourably to Article 32(1) of the Statute. As for a mistake of law, a person is deemed to have acted without guilt and will not be punished if he is incapable of understanding the unlawfulness of his act and could not have avoided the error.68 If he erroneously assumes that something legally justies his act (for example, circumstances of self-defence that in reality do not exist), he may be held liable for negligence if this constitutes an offence in itself.69 The Constitution stipulates that no one is to be convicted of an act that did not constitute a crime under the law in force at the time the act was committed nor be punished more severely than was prescribed at that time.70 Accordingly, legislative Acts on substantive criminal law have no retroactive effect, unless they produce favourable effects for the accused.71 However, genocide, crimes against humanity and war crimes are considered to be of such severity that they are punishable even if their criminalization under domestic law may be deemed retroactive.72 The Estonian Supreme Court has held, with reference to Article 7(2) of the European Convention of Human Rights, 64

Section 88(2), PC. A person acts with deliberate intent (dolus determinatus) if he knows or considers possible that his actions will have a particular result, and it is precisely his aim to bring it about. In case of direct intent (dolus directus), the person knows for sure that his actions will have a particular result and, although not necessarily aiming for such a result, nonetheless wants or accepts it. A person is deemed to have acted with indirect intent (dolus eventualis) if he considers it possible that his actions may have a particular result and accepts the risk. Section 16, PC. 66 Tehver, ‘Analysis’, supra note 30, at 7 (question 8a). 67 Section 17(1), PC. 68 Section 39, PC. 69 Section 31(1), PC. 70 Section 23(1) and (2), Constitution. 71 Section 5(2), PC. 72 See Section 5(4), PC. 65

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that the principle of nullum crimen sine lege is not violated in circumstances where an act was prohibited by international law at the time of commission, but was prosecuted and punished under domestic law enacted ex post facto.73 This view has been upheld by the European Court of Human Rights.74 Finally, it may be mentioned that Estonia is a party to the 1968 Statutory Limitations Convention.75 The provisions of this treaty have been implemented in domestic law by the Penal Code, which provides that crimes against humanity (including genocide), war crimes, and offences for which life imprisonment is prescribed never become time-barred.76

4. Preconditions for the Exercise of Jurisdiction The Constitution stipulates that no one shall be tried or punished for an act of which he has been convicted or acquitted conclusively pursuant to law.77 This is generally understood as barring the Estonian authorities from pursuing a case where a nal judgment has already been passed by an Estonian court.78 At the same time, the Penal Code provides that no one shall be punished more than once for the same offence, regardless of whether the punishment has been imposed in Estonia or in another state.79 This is clearly applicable by analogy in circumstances where a punishment was imposed by an international judicial body. The Code of Criminal Procedure differs in wording from both the Constitution and the Penal Code, providing that criminal proceedings are precluded where a decision of ‘a court’ has entered into force in respect of a person on the same charges.80 73 See In re Penart, Case No. 3-1-1-140-03, Supreme Court, Judgement of 18 December 2003, Riigi Teataja III 2004, 2, 23, at para. 10 (no English translation available). 74 Kolk and Kislyiy v. Estonia (Applications no. 23052/04 and 24018/04), ECHR, Decision of 17 January 2006; Penart v. Estonia (Application no. 14685/04), ECHR, Decision of 24 January 2006; see also Antonio Cassese, ‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal Law: The Kolk and Kislyiy v. Estonia Case before the ECHR’, 4 Journal of International Criminal Justice (2006) 410–418. 75 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, New York, 26 November 1968, in force 11 November 1970, accession on 21 October 1991, 754 United Nations Treaty Series 73. 76 Section 81(2), PC. 77 Section 23(3), Constitution. 78 See Eerik Kergandberg, ‘§ 23’, in Eesti Vabariigi põhiseadus, supra note 6, at 200–211 at 207. 79 Section 2(3), PC. 80 Section 199(1) clause 5, CCP. Somewhat inconsistently, Section 204 clause 5, CCP, stipulates that a Prosecutor’s Ofce may terminate proceedings in cases where the ‘person has been convicted and has served the sentence in a foreign state and the punishment applicable in Estonia is not signicantly more

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Foreign or international courts are not expressly mentioned and no distinction is made between acquittals and convictions. But since there is nothing suggest otherwise, it seems reasonable to assume that all of the above are included. Therefore, Estonian authorities appear to be barred from further proceedings where a person has been either acquitted or convicted by the ICC. The Constitution prescribes a special procedure for bringing charges against certain public ofcials. Members of the Riigikogu, the President, Cabinet ministers, the Auditor-General, and Justices of the Supreme Court can only be charged with a crime pursuant to a proposal by the Chancellor of Justice81 and with the consent of the majority of the members of the Riigikogu.82 A similar procedure applies to the Chancellor of Justice, in whose case the proposal has to be made by the President.83 Charges against judges of trial and appeal courts can be brought pursuant to a proposal by the Supreme Court and with the consent of the President.84 The procedure for lifting the constitutional immunities does make it possible for Estonia to take advantage of its prerogative under the principle of complementarity. Problems would arise only were the Riigikogu or the President to refuse to give their consent. This is highly unlikely, however, especially in the case of serious crimes such as those falling under the jurisdiction of the Court. In practice, the procedure has been applied with regularity,85 although the Riigikogu and the President admittedly have discretional powers with regard to these decisions. A curious problem, albeit most likely a theoretical one, may arise from what is known as parliamentary indemnity. By virtue of the Constitution, a member of the Riigikogu shall not be held legally responsible for votes cast or political statements made in the Riigikogu or in any of its bodies.86 This provision would seem to bar criminal proceedings against a member of the Riigikogu who had made a speech inciting to a

severe than the punishment served, or if the person has been acquitted in a foreign state’. 81 An independent ofcial who, in the capacity of an ombudsman, supervises the activities of institutions exercising public functions, but also reviews the constitutionality and legality of legislation. 82 See, respectively, Sections 76, 85, 101(1), 138, and 153(2), Constitution. 83 Section 145, Constitution 84 Section 153(1), Constitution. 85 In respect of members of the Riigikogu, see decisions of the Riigikogu of 19 April 1996 (Riigi Teataja I 1996, 30, 596), 17 June 1998 (Riigi Teataja I 1998, 57, 868) and 15 September 2005 (Riigi Teataja I 2005, 50, 397); in respect of trial court judges, see decisions of the President of 4 September 1996 (Riigi Teataja Lisa 1996, 64, 1176), 6 January 2000 (Riigi Teataja Lisa 2000, 7, 73), 25 November 2002 (Riigi Teataja Lisa 2002, 132, 1941), 20 September 2005 (Riigi Teataja Lisa 2005, 99, 1515) and 13 June 2006 (Riigi Teataja Lisa 2006, 49, 911). 86 Section 62, Constitution.

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crime punishable under the Statute. There appears to be no provision in domestic law for setting aside this indemnity. As far as immunities arising from international law are concerned, Estonian criminal procedural law may be applied to a person enjoying diplomatic immunity or other privileges prescribed by an international agreement ‘at the request [sic!] of a foreign state, taking into account the specications provided for in an international agreement’.87 Although this provision is limited to international agreements, immunities arising from customary international law would have to be respected in Estonia by virtue of constitutional provisions mentioned earlier.88 There is no implementing legislation on limitations to immunities, which would therefore have to be derived directly from international law, including Article 27 of the Statute.

5. Offences against the Administration of Justice The Penal Code criminalizes a number of ‘breaches of the duty to maintain integrity’, in particular any participation in bribery,89 as well as counterfeiting or falsication of documents by ofcials.90 The Code also spells out a range of crimes against the administration of justice.91 Explicit reference to the ICC has not been made in any of these provisions, but as the term ‘ofcial’ may be interpreted broadly, the relevant sections could conceivably be applied in respect of all judicial bodies, not only domestic courts. Although these provisions generally cover the crimes against the administration of justice as dened in the Statute, some issues remain. First, the Code places the emphasis on the creation of false evidence rather than the introduction of them in trial, which means that only presenting evidence that the party knows is false or forged is not considered a punishable offence.92 Second, obstructing the appearance of a witness

87

Section 4 clause 2, CCP. See supra note 2 and accompanying text. 89 Sections 293–298, PC. 90 Section 299, PC. 91 Various acts of coercive or retaliatory violence in connection to a criminal procedure against judges, lay judges, investigators, prosecutors, defence counsels, representatives of victims, or persons close to them (Sections 302–304), as well as suspects, accused, acquitted or convicted persons, witnesses, experts, translators, interpreters or victims (Section 323); contempt of court (Section 305); elimination or fraudulent creation of evidence (Section 316); perjury (Section 320) and coercion into committing perjury (Section 322); rendering false expert opinion or providing false translation or interpretation (Section 321) and coercion into committing these act (Section 322); obstructing the appearance of a participant in the proceedings, witnesses, victims, experts, translators or interpreters (Section 317). 92 Cf. Article 70(1)(b), RS, and Section 316, PC. 88

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is punishable under Estonian law,93 but other undue interference with the testimony is punishable only to the extent that it involves violence.94 Third, acts of impeding, intimidating, corruptly inuencing or retaliating against an ofcial of the Court are punishable as crimes against the administration of justice when they concern different forms of violence against judges, prosecutors, investigators, but also against defence counsels and representatives of victims and persons close to them.95 Certain acts against other ofcials of the Court may qualify as violence against, or defamation or insult of persons protecting the public order.96 Insofar as non-violent intimidation or corruption is concerned, such acts may, depending on the circumstances, be punishable as the general crime of threat97 or the various forms of breaches of integrity mentioned above.98

6. Discretion of the Prosecution The commencement of an investigation of crimes covered by the Statute is not premised on the consent of any political institution.99 Residence or presence of the suspect in Estonia is also not required for an investigation but in the trial phase the presence of the accused is generally compulsory.100 The court may, however, decide to proceed with the trial without the accused present if he is abroad and deliberately avoids the proceedings.101 According to the principle of mandatory criminal proceedings, the authorities are generally required to conduct an investigation ‘upon the appearance of facts referring to a crime’,102 unless a statutory provision expressly precludes proceedings.103 How93

Section 317, PC. Cf. Article 70(1)(c), RS, and Section 323, PC. 95 Cf., on the one hand, Articles 70(1)(d) and (e), RS, and, on the other hand, Sections 302–304, PC. 96 Sections 274–275, PC. 97 Section 120, PC. 98 See supra note 90 and accompanying text. 99 In case of crimes committed abroad, only the Prosecutor-General’s Ofce (Riigiprokuratuur, in some English translations referred to as the Public Prosecutor’s Ofce) may initiate proceedings (Section 435(3), CCP). 100 Section 269(1), CCP. 101 Section 269(2) clause 3, CCP. Also, proceedings may be conducted without the accused present if he has been removed from the courtroom for misbehaviour (essentially contempt of court) (clause 1), if he has consented to participation in the form of video-conferencing (clause 2), or if he has caused himself to be in a state that precludes his participation (clause 4). 102 Section 6, CCP. 103 In particular, the absence of elements of the crime, expiry of statutory limitations, an amnesty, death 94

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ever, for crimes of lesser severity,104 there are some exceptions.105 Upon application from the victim, a decision not to commence criminal proceedings will be reviewed by a Prosecutor’s Ofce.106 This decision, as well as a decision to terminate criminal proceedings, is subject to appeal to the Prosecutor-General’s Ofce whose decision in these matters can, in turn, be challenged before a Circuit Court of Appeal.107 There are two instances where proceedings can be terminated, curiously enough, without being subject to the review of the courts. Firstly, the Prosecutor-General’s Ofce may, under certain circumstances, terminate proceedings if the suspect or accused has cooperated in the investigation of another crime.108 Secondly, and more problematically, a Prosecutor’s Ofce may terminate criminal proceedings in cases that do not have substantial connection to Estonia.109 While the rationale for the latter principle is evident—saving judicial resources—, it is rather difcult to reconcile with the general resolve of the international community to ght transnational crime and to eradicate impunity. However, treaties binding on Estonia that create aut dedere aut iudicare regimes prevail over this provision of the Code of Criminal Procedure, somewhat mitigating its effects.

of the suspect or the accused, and ne bis in idem considerations (Section 207(1), CCP). 104 This refers to crimes for which the maximum punishment is no more than ve years imprisonment and if a ne may be applied. With respect to the crimes covered by the Statute, this means the following offences in the PC: unlawful treatment of prisoners of war and interned civilians not amounting to an attack against them (Section 98); damaging the environment as method of warfare (Section 104); exploitative abuse of emblems and marks designating international protection (Section 105); attacks against non-military targets (Section 106); attacks against cultural property (Section 107); and destruction or illegal appropriation of property in war zone or occupied territory (Section 108). 105 For decisions not to commence proceedings cf. Sections 199(2) and 219(1), CCP; for requests to terminate proceedings cf. Sections 202(1) and 203(1), CCP. 106 Section 201(1), CCP. 107 Sections 207(2) and 208, CCP. 108 Section 205(1), CCP. 109 Specically where the crime was committed abroad or by a foreign citizen on board a foreign ship or aircraft; where an accomplice acted in Estonia but the consequences of the crime occurred abroad; where the alleged offender is to be extradited; or when the crime was committed abroad, but its consequences occurred in the territory of Estonia and where conducting the proceedings may result in serious consequences for Estonian or where such proceedings are conict with other public interests Section 204, CCP; see also supra note 81.

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III. Cooperation with the Court 1. Implementation of the Duty to Cooperate in General Provisions of domestic law on cooperation with the Court are contained in the Code of Criminal Procedure and the Rome Statute Ratication Act. The cooperation between Estonia and the Court is considered a form of international cooperation in penal matters and is governed by the same rules that apply to inter-state cooperation110 unless the Statute provides otherwise.111 As a general matter, the provisions dealing explicitly with the Court in Estonian law are few in number and limited in scope, which is somewhat mitigated by the fact that the Statute itself is a source of law in the Estonian legal system. The Prosecutor-General’s Ofce is responsible for arranging the detention and arrest of a person at the request of the Court,112 but both arrest and provisional arrest are premised upon the consent of a preliminary investigation judge.113 The Cabinet decides on the extradition or surrender of Estonian nationals; with respect to any other person, the decision is taken by the Minister of Justice.114 It may be assumed that the same authorities will decide on conicting requests, with reference to Article 90 of the Statute, if necessary. Although the law provides some guidelines for deciding competing requests,115 it does not clearly prioritize requests from the Court. As far as other forms of cooperation are concerned, the Prosecutor-General’s Ofce will verify whether compliance with a request is admissible and possible and forwards the request to the ‘competent legal authority’ for execution.116 The law expressly species the competent authority for certain requests concerning inter-state cooperation, and this presumably applies mutatis mutandis to cooperation with the Court.117 Requests from the Court should be transmitted either through diplomatic channels or directly to the Prosecutor-General’s Ofce, in Estonian or in English.118 110

Chapter 19, Sections 433–508, CCP. Sections 433(1) and 489(1), CCP. Hence, when this report hereunder refers to ‘extradition or surrender’ it means that extradition provisions are likely to be applied mutatis mutandis to surrender. 112 Section 489(2), CCP. 113 Sections 131 et seq. and 447(2), CCP. 114 Section 36(2), Constitution, and Section 452, CCP. 115 See Section 441, CCP. 116 Section 462(2), CCP. 117 In this vein, the temporary transfer to the Court of a person detained in Estonia would be decided by the Minister of Justice, the service of summons arranged through the court of rst instance of the person’s place of residence, and any transfer of property decided by the court of rst instance of the location of such property (Sections 466(1), 462(3) and 470(1), CCP). 118 See Multilateral Treaties Deposited with the Secretary-General: Rome Statute of the International 111

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The Court has necessary legal capacity in Estonia by virtue of the direct application of Article 4(1) of the Statute. Also, Estonia ratied the Agreement on the Privileges and Immunities of the International Criminal Court (APIC)119 on 13 September 2004, which further bolsters the legal personality of the court vis-à-vis Estonia. The Court is allowed to sit on the territory of Estonia on the basis of Article 12 of the APIC, read in conjunction with Articles 3(3) and 4(2) of the Statute. Estonia has not made a statement under Article 23 of the APIC and thus has not limited the privileges and immunities of its own nationals and permanent residents.

2. Specic Forms of Cooperation Estonia is able to cooperate with the Court in most of the matters listed in Article 93(1) of the Statute without major difculties. In particular, domestic law expressly stipulates that the Prosecutor of the Court, when performing procedural acts in Estonia, has all the rights and obligations of an Estonian prosecutor120 and can thus conduct on site investigations. Domestic law fails to address certain issues explicitly, such as the location of items, the voluntary appearance of persons before the Court and the provision of records and documents,121 as well as consultations with the Court regarding various issues mentioned in Part 9 of the Statute. Other than these deciencies, nothing in national law appears to be able to signicantly complicate or delay a request for cooperation by the ICC, and there are no substantial differences in the requirements for such requests in the Statute and in domestic law.122 Estonia will deny a request of assistance if rendering such assistance might endanger the security, public order, or other essential interests of the state, or if it would be in conict with general principles of Estonian law.123 However, given that the Statute is directly applicable and prevails over ordinary legislation, such considerations could be upheld against requests by the ICC only as far as they may be regarded as dealing with Criminal Court, (visited 11 July 2006). 119 Agreement on the Privileges and Immunities of the International Criminal Court, New York, 9 September 2002, in force 22 July 2004, ratication 13 September 2004, 2271 United Nations Treaty Series 3. 120 Section 489(3), CCP. 121 Articles 93(1)(a),(e) and (i), RS; see also Tehver, ‘Analysis’, supra note 30, at 16. 122 Domestic law does insist upon a legal assessment or qualication of the offence underlying the request (Section 460(1) clause 4, CCP), but this is presumably encompassed by the phrase ‘legal basis and the grounds for the request’ in Article 96(2)(b) of the Statute. Also, an extract of the legal act on which such a qualication is based (Section 460(2) clause 1, CCP) can in all likelihood be substituted by a reference to an appropriate article of the Statute. 123 Section 436(1) clauses 1 and 2, CCP.

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the protection of national security or as ‘existing fundamental principle[s] of general application’ under Articles 72, 93(3) and 93(4) of the Statute and in accordance with the limitations contained therein. Assistance may also be refused if there is reason to believe that it is requested for the purpose of bringing charges against, or punishing, a person on account of his race, nationality or religious or political beliefs, or if his situation may deteriorate for any such reason.124 Invoking this provision against a judicial body in the establishment of which Estonia participated may prove unconvincing. At any rate, a situation falling under this provision of domestic law would have to be resolved in accordance with Article 93(3) of the Statute and in light of human rights norms binding on both Estonia and the ICC.125

3. Arrest and Surrender There are a few grounds for refusing extradition or surrender in addition to the general grounds for refusal of assistance mentioned above.126 Most of them are inapplicable in cases of surrender to the Court due to the nature of the crimes under its jurisdiction, and the remaining few (in particular ne bis in idem considerations or amnesties) cannot be applied insofar as they are in conict with the Statute. The admissibility of a request for surrender—premised on the initiation of criminal proceedings and the issuance of an arrest warrant, or the entry into force of a prison sentence—is veried by Harju County Court, one of four rst instance courts of general jurisdiction.127 The County Court does not independently ascertain whether an arrest warrant was properly issued but, as a matter of practice, refers in this regard to the Ministry of Justice, which conrms whether the warrant emanates from a competent authority. At the admissibility hearing, the judge will explain the request and the course of the proceedings, and also hear on the matter the person subject to the request, his counsel, and the prosecutor.128 Upon deciding the admissibility of a request for extradition or surrender, the presiding judge may place the person under arrest; without the consent of a judge it is only possible to detain the person for a maximum of 48 hours.129 124

Section 436(1) clause 3, CCP. See also Article 21(3) of the Statute, expressly prohibiting discriminatory application of law by the Court. 126 Sections 440(1–3), CCP. 127 Sections 438, 446, 450 and 451, CCP. 128 Section 450(4), CCP. 129 Sections 447(1) and 451(2) clause 5, CCP, and Section 21(2), Constitution. 125

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The various stages of extradition or surrender are to be carried out without delay or under strict statutory time limits.130 In urgent cases, a preliminary investigation judge may place a person under provisional arrest before the formal request for extradition or surrender has arrived provided that prima facie grounds for extradition or surrender exist and that assurance of the prompt dispatch of the relevant documents is received.131 A person placed under provisional arrest may be released if the formal request for extradition or surrender has not been received within 18 days and shall be released if the request has not been received within 40 days.132 This does not conform to Article 92(2) of the Statute read in conjunction with Rule 188 of the Rules of Procedure and Evidence, which stipulate that a provisionally arrested person may be released if the appropriate documents have not been received within 60 days. The Rules prevail, however, as an international obligation of Estonia. Domestic law does not establish a procedure of interim release as understood in the Rome Statute, but the court order placing a person under arrest is subject to an appeal to the Circuit Court.133 The Constitution stipulates that a person can be detained pursuant to a procedure provided for by law for, inter alia, the purpose of extradition to a foreign state.134 This provision should be interpreted so as to include surrender to the ICC. The commencement of surrender procedures is thus sufcient ground for arresting a person and the general rule of the Statute that persons awaiting trial should be detained can be complied with. The Code of Criminal Procedure envisages that requests for surrender be carried out in accordance with the rules generally applicable to arrest.135 It would appear, though, that the provisions regulating arrest with a view to extradition would be more appropriate, given that the procedure for the latter is swifter and is carried out without regard to the general grounds justifying arrest (the prevention of a crime and the ight risk of the accused).136 Estonia will refuse extradition or surrender if a person has already been convicted or acquitted of the same charges in Estonia.137 It is expressly prohibited to place a person under arrest with a view to extradition or surrender if legal impedi130

Sections 445(4), 450(1), and 452(3), CCP. Section 447(2), CCP. 132 Section 447(5), CCP. 133 Section 447(8), CCP. 134 Section 20(2) clause 6, Constitution. 135 See Section 489(2), referring to Sections 131 and 217, CCP. 136 See Section 20, Constitution, and Sections 130(2) and 447 et seq., CCP. 137 Section 440(1) clause 2, CCP. 131

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ments to extradition or surrender—based, e.g., on ne bis in idem considerations—have become evident.138 Domestic law does not explicitly provide that the surrender of an arrested person may be postponed pending a ruling by the Court on admissibility. The Ministry of Justice may postpone a surrender if it is necessary for conducting criminal proceedings in Estonia with regard to the person in question or for carrying out a sentence.139 The Minister is also competent to grant permission for the transit of a person extradited or surrendered by third states through the territory of Estonia, the person being held in custody during transit.140 Other than what has been observed above, no provisions of national law can be identied that could create unnecessary legal obstacles to the execution of a request for arrest and surrender and there are no substantial differences in the requirements for such requests in the Statute and in domestic law.141 As a general matter, the extradition or surrender of an Estonian national is permitted, but it must take place under the conditions prescribed by an international agreement—in case of surrender, the Rome Statute—and requires a decision of the Cabinet.142 However, the immunities of the members of the Riigikogu and certain high public ofcials, as discussed earlier,143 also apply to arrest and surrender to the Court.144 When it comes to exceptions from state or diplomatic immunity of the nationals of other states, there is also no specic implementing legislation. However, Estonia holds the position that according to Article 27 of the Statute, State Parties have waived in advance the immunities of their ofcials in respect of all possible proceedings under the Statute and before the Court. Therefore, Estonia deems itself to be in a position to arrest and surrender nationals of State Parties who would otherwise enjoy immunities. Nationals of third States may only be arrested and surrendered with the consent of the appropriate State in conformity with Article 98(1) of the Statute. An exception can be foreseen in circumstances where the Security Council, in conjunction with a referral of a situation to the ICC, were to demand the arrest and surrender of a foreign ofcial enjoying immunity. In such a case, Estonia would have to comply with 138

Section 447(4), CCP. Section 453(1), CCP. 140 Section 456, CCP. 141 See Section 442(2), CCP. Observations made in supra note 123 apply here as well. 142 Section 36(2), Constitution. 143 See supra notes 82–86 and accompanying text. 144 The immunities mentioned are constitutional in nature and the underlying rules can be modied only by means of an amendment to the Constitution. For the amendment procedure, see Chapter XV (Sections 161–168), Constitution. Amendments were not deemed necessary at the time of ratication of the Statute for the reasons indicated in supra text accompanying notes 82–86. 139

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the demand according to Articles 25 and 103 of the United Nations Charter even if it would conict with the obligations under other international agreements. The fact that the Court may impose life imprisonment or imprisonment for up to 30 years does not create an obstacle to the execution of a request for surrender, because life imprisonment is prescribed as a punishment for certain crimes in Estonia.145

4. Enforcement of Sentences Estonia has not received prisoners from the United Nations ad hoc tribunals. The authors deem the acceptance of sentenced persons from the ICC unlikely in the foreseeable future as Estonia is struggling with a relatively high prison population146 and a shortage of detention facilities. The enforcement of orders by the Court concerning nes and forfeiture measures is likely to be carried out under the provisions of the Code of Criminal Procedure dealing with the recognition and execution of judgments of foreign courts.

IV. Conclusion The general attitude on implementation that has prevailed among Estonian lawyers to date—that the Rome Statute does not require implementation in domestic law—is not entirely justied. As has been shown in the discussion above, while direct application of the Statute does solve a great many problems, some outstanding issues still remain. Although international crimes are generally well implemented in Estonia, crimes against humanity are somewhat loosely dened, and some war crimes not entirely satisfactorily covered. In most instances, the war crimes in question would nonetheless be punishable as ordinary offences, aggravated by the fact that they were committed in time of war. This does not entirely solve the problem, as the command responsibility provision in the Penal Code is expressly limited to the part of the Code that denes international crimes as such.147 It is of particular concern that enlisting or conscripting children in the armed forces does not constitute a war crime under Estonian law. This is a problem that goes beyond the purview of criminal law as Estonia has, to date, failed to ratify the Protocol on Children in Armed Conict that it signed on 24 145

Section 45(1), PC. The prison population rate is about 340 prisoners per 100,000 inhabitants, which is the highest of all the European Union countries: Roy Walmsley, World Prison Population List (6th edn, King’s College London, 2005). 147 See supra note 48 and accompanying text. 146

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September 2003.148 The Ministry of Justice has conceded that the denition of crimes against humanity should be reviewed and the war crimes of starvation of civilians and use of child soldiers more concretely implemented.149 When it comes to offences against the administration of justice, a savings clause should be added to the Penal Code in the interests of clarity, providing that the provisions thereof dealing with the administration of justice apply equally to the national judicature and international tribunals. As far as cooperation with the Court goes, it neither seems to be particularly hindered nor especially facilitated by domestic law. Implementation of the duty to cooperate with the Court is done in passing at best and in a rather cryptic form. Because international cooperation in judicial matters with other states is by and large carried out on the basis of various international agreements, domestic legislation on the issue is minimal. Applying this limited regulatory framework to cooperation with the Court mutatis mutandis is perhaps not the best of solutions. Having said that, it must be emphasized that Estonia is actively involved in the various aspects of the work of the Court, having been elected member of the Bureau of the Assembly of States Parties in late 2005 and taking part in numerous meetings dealing with issues relevant to the Court, particularly in the framework of the European Union.150 Therefore it could be argued that the shortcomings of domestic law pointed out in this article are incidental or due to a different interpretation of the required level of implementation.

148 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conict, GA Res. 54/263, 25 May 2000. For ratication status, see <www.ohchr.org/english/ countries/ ratication/11_b.htm> (visited 14 July 2006). 149 Ministry of Justice Memo, supra note 51. 150 Ibid.

Implementation of the Rome Statute in Finland Jussi Ohisalo*

I. Introduction The Finnish approach to implementation of the Rome Statute is undergoing change. Finland signed the Statute on 7 October 1998 in Rome and ratied it on 29 December 2000. In the year 2000, an Act on the implementation of the provisions of a legislative nature of the Rome Statute of the International Criminal Court and on the application of the Statute was passed.1 In the same context, an Act to introduce certain changes to the Finnish Penal Code2 was passed.3 Because of subsequent legislative changes, the provisions contained in the latter Act have found their way into the Penal Code in a slightly modied manner, but substantially they remain as originally passed. This rst round of implementation was aimed at making sure that Finland was in a position to ratify the Rome Statute in accordance with its Constitution and was able to full its obligations to cooperate with the International Criminal Court (ICC). Some changes were also made to the Finnish Penal Code concerning offences against the administration of justice, so that the said provisions would adequately take into account and criminalize offences directed at the integrity of proceedings at the ICC. *

LL.M. University of Helsinki, 2002. Currently Helsinki District Prosecutor’s Ofce, Finland. The author wishes to indicate his sincere gratitude towards the entire PINIL team but above all to the unrelenting professionalism of Mr. Rain Liivoja, without which the paper would be severely lacking both in substance and in form. 1 Laki Kansainvälisen rikostuomioistuimen Rooman perussäännön lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta ja perussäännön soveltamisesta (Act on the implementation of the provisions of a legislative nature of the Rome Statute of the International Criminal Court and on the application of the Statute), 28 December 2000, Enactment No. 1284/2000, government proposal 161/2000, (hereinafter ‘Implementation Act’). 2 Rikoslaki (Penal Code), 19 December 1889, Enactment No. 1889/39 (as amended), an unofcial translation is available at <www.nlex./en/laki/kaannokset/1889/en18890039.pdf> (visited 9 April 2007). All subsequent quotes from the Penal Code are taken from this source. 3 Laki rikoslain muuttamisesta (Act on the amendment of the Penal Code), 28 December 2000, Enactment No. 1285/2000.

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At this stage, denitions of other offences and general doctrines of criminal liability were left untouched. The idea was that Finnish criminal law came ‘close enough’ to the law as dened in the Rome Statute so as not to trigger the jurisdiction of the ICC.4 Finland was, it was said, in a position to handle trials that could potentially fall under the jurisdiction of the ICC. In 2005, however, this thinking changed. A working group was set up, tasked with the objective of proposing a revision of the legislation concerning the subject matter jurisdiction of the ICC. The working group consisted of representatives from the Ministry of Justice, Ministry for Foreign Affairs and University of Turku. As can be observed from the following, signicant changes were proposed.5 However, the implementation of these proposals is still pending. At the time of writing,6 the relevant parts of Chapter 11, entitled ‘On War Crimes and Crimes against Humanity’, can be said to be a neglected backyard of the Penal Code. Without any practical application, it has been left to stand much as it is, despite the overall reform of the Code, sweeping through Chapter 11 in the 1990s.7 The state of Chapter 11 is now accentuated not only by the astonishingly swift development of international criminal law, but also an upsurge in the importance granted to the principle of legality in both the Constitution and in the Penal Code.8 As can be seen below, Finnish core crimes legislation has relied heavily on open references to international law. With the proposed reform, this would still be the case, especially concerning war crimes. This requires some clarication as to the value of the said principle in the allocation of criminal responsibility. So, it could be said that the neglected backyard of Chapter 11 will achieve a presentable, and more importantly, a functional condition, if and when the changes described below will come into effect. It is largely to the documentation of this transition in thinking that this article is dedicated. Unfortunately, printing schedules would not allow waiting for the proposed legislation to go through the parliamentary process, but it can be anticipated that the proposed reforms will enter into force in the near future, and in roughly the shape described below. The government proposal was 4

For a summary of this position, see the progress report of Finland to the Council of Europe dated 11 September 2001, text available at <www.coe.int/t/e/legal_affairs/legal_co-operation/public_international_ law/texts_%26_documents/icc/ConsultICC(2001)13E%20Finland.pdf> (visited 9 April 2007). 5 The said document can be found (in Finnish) at <www.om./35672.htm> (visited 9 April 2007). 6 This paper reects developments until April 2007. 7 Laki rikoslain muuttamisesta (Act to Amend the Penal Code), 21 April 2005, Enactment No. 578/1995. 8 The principle of legality is contained in Section 1(1), Chapter 3, PC: ‘A person may be found guilty of an offence only on the basis of an act that has been specically criminalized in law at the time of its commission.’ A constitutional provision to roughly the same effect can be found in Section 8 of Chapter 2 of the Constitution of Finland, 11 June 1999, Enactment No. 731/1999.

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initially due to be presented to parliament in the autumn of 2006, but was postponed because of elections until 2007. As the legislation itself has no budgetary effects nor is it a topic for heated political debate, it should proceed swiftly through parliament once presented to it by the government. Therefore, the proposed legislation will be discussed based on the way it appears in the draft of the working group. At the time of writing, the proposal itself is in a type of limbo, and there is a possibility that it will undergo changes before being passed as law. The reader is therefore advised to consult other available and later sources for an understanding of the law in force.

II. Complementarity 1. General Principles of Jurisdiction In Sections 1–6 of Chapter 1 of the Penal Code, the ‘conventional’ principles of jurisdiction are outlined in a rather wide compass. According to these provisions, Finnish law applies to offences committed in Finland, offences connected with a Finnish vessel, offences directed at a Finn or committed by a Finn and offences directed at Finland. As to the universal applicability of Finnish criminal law, Section 7 of Chapter 1 states that ‘Finnish law applies to an offence committed outside of Finland where the punishability of the act, regardless of the law of the place of commission, is based on an international agreement binding on Finland or based on another statute or regulation internationally binding on Finland’. These are referred to as international offences and are listed in a government decree through references to specic treaties.9 Supplemented by this list, the Penal Code provides for universal jurisdiction with respect to certain war crimes (the provision itself ows from obligations under the ‘grave breaches’ regime of the 1949 Geneva Conventions10 and their Additional Protocols11), genocide and 9

Asetus rikoslain 1 luvun 7 §:n soveltamisesta (Decree on the Application of Section 7 of Chapter 1 of the Penal Code), 16 August 1996, Enactment no. 627/1996, with subsequent amendments. 10 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Convention (III) Relative to the Treatment of Prisoners of War, and Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, in force 21 October 1950, 75 United Nations Treaty Series 31, 85, 135 and 287. 11 Protocol (I) Relating to the Protection of Victims of International Armed Conicts, and Protocol (II) Relating to the Protection of Victims of Non-International Armed Conicts, Geneva, 7 June 1977, in force 7 December 1978, 1125 United Nations Treaty Series 3 and 609; Protocol (III) Relating to the Adoption of an Additional Distinctive Emblem, Geneva, 8 December 2005, in force 14 January 2007, <www.icrc. org/ihl.nsf/FULL/615>.

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the preparation of genocide. The exercise of universal jurisdiction usually requires an order of the Prosecutor General.12 As a limitation on the broad jurisdiction of Finnish courts, Section 15 of Chapter 1 of the Finnish Penal Code provides that [i]f an international treaty binding on Finland or another statute or regulation that is internationally binding on Finland in some event restricts the scope of application of the criminal law of Finland, such a restriction applies as agreed. Also, the restrictions on the scope of application of Finnish law based on generally recognized rules of international law apply.

This would mean that so-called Status of Forces Agreements would limit the jurisdiction of Finnish courts, if the preconditions listed in the provision would be met. One eventual problem could result from the fact that Finnish law does not include a separate crime of torture, even though the obligations of the 1984 Convention against Torture13 have been seen to be fullled by including torture in the list of international offences. Therefore, the crime might go unpunished because of the statute of limitations on the ‘ordinary crime’ that might be applicable instead, or simply because there is no ‘ordinary crime’ to be applied to the case at hand. The same could theoretically occur with regard to crimes against humanity and war crimes, especially in non-international armed conicts, as dened by the Rome Statute. In the proposed reform discussed below, this shortcoming would be xed, since the committee proposes that crimes against humanity and war crimes as dened in the Statute be included in the decree containing the list of international offences. The complementary nature of the jurisdiction of the ICC was discussed from a constitutional perspective as well in the initial round of implementation. According to Section 1(3) of the Finnish Constitution, Finland participates in international cooperation for the protection of peace and human rights and for the development of society. Since the jurisdiction of the ICC is of a complementary nature, and the foundation of the ICC was interpreted to fall within the scope part of the activities mentioned in article 1(3), the acceptance of the jurisdiction of the ICC was seen by the Committee not to be in major conict with the provision concerning the sovereignty of Finland.14 12

Cf. Section 12(1)(1), Chapter 1, PC. The exceptions listed in Section 12(2) do not represent cases of universal jurisdiction, except for Section 12(1)(2) (referral to Finland of prosecutions into acts committed in Denmark, Iceland, Norway, or Sweden) and Sections 12(1)(5) and (6) (crimes coming under the Military Court Procedure Act or statutory provisions authorizing the President of the Republic or of Parliament to order prosecutions). 13 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, in force 26 June 1987, 1465 United Nations Treaty Series 85. 14 The committee based its interpretation on the preparatory works of the Constitution, government proposal 1/1998, at 73.

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2. Core Crimes In the travaux of the original Implementing Act, the Finnish substantive criminal law was seen roughly to correspond to the Statute. Therefore, a revision of the Penal Code was not deemed necessary at that time. The ideology seemed to be that as long as crimes included in the Statute would somehow be punishable as ‘normal crimes’ in Finland, no changes were necessary. Moreover, some commentators noted that war crimes, crimes against humanity and genocide were already in the Penal Code, dened in an even wider way than in the Rome Statute.15 However, even a brief look at Chapter 11 entitled ‘War Crimes and Offences Against Humanity’ will reveal that the systematic solutions or the descriptions of the crimes do not correspond to those of the Statute. As noted above, the attitude towards legislation concerning war crimes, genocide and crimes against humanity has changed. In October 2005, the government set up a working group, with representation from the Ministries of Justice and Foreign Affairs and the University of Turku, assigned with the task of drafting a memorandum in the form of a government proposal, covering the crimes under the jurisdiction of the ICC. One could say that this development was not unexpected due to the fact that at the time of ratication of the Statute, the Law Committee of Parliament had made clear that the legislation should be revised to correspond to the Statute. Also, at the 28th Red Cross Conference, Finland made a pledge to the same effect, stating as a deadline the end of 2007.16 After the work done by the working group there was a request for comments from various interested organizations and individuals. As could be suspected, due to the relative obscurity of the subject matter, the comments were of a heterogeneous nature.17 The bill was expected to be given to Parliament in the fall of 2006, but was postponed until 2007 because of elections. It can be argued that the proposed reform indicates a shift in the pattern of thinking concerning crimes with their origin in international law. Characteristic of this approach is a more careful and reective evaluation and adoption of models found in international law, as compared to the prior wholesale adoption of international norms through open reference. Yet one could also argue that a real shift in thinking has not taken place at all, but that the reform in question has its roots solely in the implementation of one single instrument, namely the Rome Statute. Certain features 15

Ari-Matti Nuutila, ‘The Implementation of the Rome Statute in Finnish Law’, 4 Turku Law Journal (2002) 13–38 at 15. 16 Report by the government on the human rights policy of Finland 2004, p. 50 (available only in Finnish). 17 The comments (in Finnish) are on le with the author and can also be obtained from the Ministry of Justice (hereinafter referred to as ‘Comments’).

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of the proposed reform, however, lean in the direction of the interpretation that such a shift is indeed taking place and that the norms of material criminal law will follow the progressive approach Finland has taken with regard to cooperation. Chapter 11 of the Finnish Penal Code, which stipulates all crimes which are of interest in the following, is currently entitled ‘On war crimes and crimes against humanity’. However, due to the conspicuous lack of a distinct ‘crime against humanity’, this heading can be said to be less than optimal. In the initial stages of drafting, the chapter was to be entitled ‘On crimes against human rights’. In the course of the work of the committee, the title was changed to ‘On crimes against international law’. The new title can be viewed critically as well. Even if the chapter has its roots in international law, its proposed form deviates from it considerably. It can be said that in the process of domestic implementation, the norms of international law have gained a new justication and legitimacy. It is also clear that the fundamental aim of core crimes legislation is to protect individuals and not merely to make sure that international obligations are fullled.18 Also, the chapter contains other crimes apart from the ones discussed below, and they do not necessarily warrant inclusion in a chapter on crimes against international law. For example, denying access to a restaurant on the grounds of race or ethnicity or other similar reason is currently punishable under Chapter 11 as discrimination.19 Also, the new proposed title of the chapter could lead to the misconception that the individuals the crimes were committed against would not acquire the position of complainant in criminal proceedings. In Finnish law, the complainant, that is to say the victim, has considerable rights such as the right independently to initiate prosecution if certain preconditions are met and the right to have his civil claim for compensation heard in conjunction with the criminal trial. In most instances it is the duty of the prosecution to present such claims at trial. Additionally, despite the title of the chapter, it is clearly stated in the preparatory works of the proposed revision that the doctrine of concurrence of crimes would be changed. It has been held thus far that a person would be sentenced both for the war crime he had committed as well as the individual act that constituted it, e.g. rape or homicide. Now, it has been made clear that, where applicable, the person will only be sentenced under Chapter 11 and not for the individual crimes. If in return the position of the individual as a complainant in crimes under Chapter 11 was accentuated, this solution would seem to be practicable. 18 This has been the view of the Finnish section of Amnesty International, who, in their Comment, dated 10 July 2006, advocated the reintroduction of the previous proposal by the Committee to call the chapter ‘On crimes against human rights’. 19 It is rather curious that according to the annual statistics some 20 people are convicted under the chapter currently entitled ‘On war crimes and crimes against humanity’. This fact was pointed out by Professor Kimmo Nuotio in his Comment of 28 June 2006.

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In the comments on the proposed reform, concerns for the principle of legality are a recurrent phenomenon, especially with regard to the sometimes open-ended drafting of the proposed sections. This was seen by some to be detrimental to both the practical applicability of the sections and the legal certainty of the accused, because it is difcult to predict how the provisions will be interpreted.20 It seems to the author that a distinction should be made between questions concerning the ‘linguistic texture’ of the sections and the question of the normative origin of the provision. In Finnish legal drafting, it has been a longstanding tradition to write criminal law provisions in a way that is easy to understand and that allows to get a sense of what is criminally proscribed and what is not. Since this aversion to unnecessary casuistry often results in drafting that leaves room for interpretation, it is a natural concern that interpretation should be uniform. The concerns voiced in the comments should be viewed as relating to this ‘pedagogical’ dimension of legal drafting, which is informed by the principle of legality. However, if viewed in light of the question of the normative origin of a certain provision, one touches upon another aspect of the principle of legality, namely that of the nature of the sources of criminal liability and the placement of a legal order on the dualist-monist axis. As can be seen in the discussion below, the proclaimedly dualist nature of the Finnish legal order seemingly necessitated by the emphasis on the principle of legality has not been sacrosanct with regard to core crimes. This line of thought is continued in the current reform, but in a way that can best be described as more reective and more openly conveying trust in the international legal order. Therefore, if a criminal law provision is seen to have its normative origin in international law, it appears a natural solution that the domestic law should reect this. 2.a. Genocide The current denition of genocide21 roughly corresponds to the one found in the Statute. The provision is wider than that of the Statute insofar as it contains openended descriptions of the possible targeted groups (‘comparable groups’) and of the act involved (an act is deemed genocide if it ‘in another comparable manner essentially impairs the survival of the group’). The phrase ‘comparable groups’ includes groups dened by language, socio-economic status or political afliation Preparation of genocide is also criminalized22 and dened more widely than in the Genocide Convention, since it includes also drawing up a plan for genocide as well as conspiracy to commit genocide. The planning of genocide under Finnish law does not include unrealistic plans, but only plans that could reasonably be expected to be put to practice, given 20

Finnish Union of Lawyers pointed to this concern in their Comment of 9 June 2006. Section 6, Chapter 11, PC. 22 Section 7, Chapter 11, PC. 21

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an opportune moment. Concerning genocide, there are thus no major lacunae in the current legislation, since Finnish law goes further in scope than the Statute. One minor difference is that incitement to commit genocide as set out in Article 25(3)(e) of the Rome Statute does not exist as a crime in itself in the Penal Code, since incitement as a form of criminal liability requires the actual commission or attempted commission of the principal offence. Such acts would however in most cases be punishable as ethnic agitation under Section 8 of Chapter 11 of the Penal Code. In the proposed reform, the denition of genocide is brought more in harmony with the drafting of the Rome Statute in that the open-ended formulation of ‘in another comparable manner essentially impairs the survival of the group’ will be replaced by the formulation ‘sets upon the group such conditions of life that can lead to the disappearance of the group in whole or in part.’ The change is justied in the proposal by the argument that by conforming to the Rome Statute, the principle of legality is advanced. On paper, the proposed denition would not differ much from the current law. However, the proposal could amount to a narrowing of the denition, since the essential dynamic element contained in the expression ‘in another comparable manner’ would be removed. The denition of the protected groups is not subject to change in the reform. In the drafting process of the Finnish genocide denition in 1993, it was discussed whether the words ‘in its capacity as such a group’ should be included which would correspond to the words ‘as such’ in Article II of the Genocide Convention, but they were seen as superuous in parliamentary debates and therefore omitted. This line of reasoning is reected in the current proposal as well. According to the travaux, this does not mean that a substantial deviation from Article 6 of the Rome Statute is intended. Further, the omission of a reference to intentional action within the denition has to do with the fact that there is a general requirement of imputability in Finnish criminal law (of which intent is one form).23 The omission therefore constitutes an adjustment to the system of Finnish criminal law and not a deviation from the Rome Statute denition. Eventually, the proposed denition is wider than the Rome Statute inasfar as it lists causing illnesses and diseases as well as injuries to members of the group among the forms of commission, where the Rome Statute only refers to injuries. Even though it does not appear in the text of the proposed sections, a reference to the elements of crimes as a guide for interpretation is made in the travaux. This is a clear illustration of how the guidelines for interpretation are intended to follow those of the Rome Statute, where applicable. This means that a Finnish court should nd it difcult to interpret the section in a manner diverging from the future jurisprudence of the court. 23

This requirement is expressed in Section 5, Chapter 3, PC.

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In conclusion, one could say that the denition of genocide will largely remain the same, in some aspects going further than the Rome Statute. However, in an effort to bring the denition closer to that of the Rome Statute, it has been made narrower in scope.24 The penalty scale for genocide is not subjected to change in the reform, and will be imprisonment for at least 4 years or for life. 2.b. Crimes against Humanity The current lack of a denition of ‘crime against humanity’ and the systematic distinctions between different groups of war crimes provisions make it difcult to compare Finnish law to the provisions on war crimes and crimes against humanity of the Rome Statute. According to the current structure of Chapter 11 of the Finnish Penal Code, the relevant provisions are placed under the headings of ‘war crime’, ‘aggravated war crime’ and ‘petty war crime’ on the one hand,25 and ‘violation of human rights in a state of emergency’, as well as the aggravated form thereof, on the other.26 This idiosyncracy in itself would not raise issues concerning complementarity. The scope of Article 7 of the Rome Statute is said to be covered in the rst instance by the provisions on ‘violation of human rights in a state of emergency’. However, if one takes a look at the Finnish sections on ‘war crimes’, it can be seen that they reect breaches of law relating to the actual conduct of hostilities (the socalled ‘Hague Law’). At the same time, the sections on ‘violation of human rights in a state of emergency’ relate more to violations of ‘Geneva law’.27 Even though these divisions are somewhat antiquated, they can be said to reect the model of thinking contained in the provisions on war crimes in Chapter 11. Consequently, despite the title of Chapter 11 (‘War crimes and offences against humanity’), a ‘crime against humanity’ does not currently exist in the Penal Code. The title of the chapter refers more to the fact that certain crimes, because of their grave nature, are directed not only against an individual but rather humanity itself. This is understandable as there lacked a treaty base for the crime before the Statute. The argument made in the government proposal that acts constituting crimes against humanity would be punishable in Finland as ‘ordinary 24 Amnesty International have in their Comment, dated 10 July 2006, argued for the previously existing and wider denition to be retained. 25 Sections 1, 2 and 3, Chapter 11, PC. 26 Sections 4 and 5, Chapter 11, PC. 27 This is the interpretation of Mikaela Heikkilä, ‘Ett folkrättsligt perspektiv på kriminaliseringen av krigsförbrytelser, folkmord och brott mot mänskligheten i Finland’, 139 Tidskrift utgiven av Juridiska föreningen i Finland (2003), No. 4–5, 455–479, at 464–465 and 473. In the government proposal of the Implementing Act, it was stated that despite the differences in the systematic solutions, Articles 7 and 8 of the Statute corresponded to Sections 1–5, Chapter 11, PC. This would indicate that crimes against humanity (in international law) correspond to Sections 4 and 5, Chapter 11, PC.

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crimes’ can be said to take into account the international nature of the crimes only inadequately,28 as well as to cause problems in relation to the statute of limitations.29 In the initial legislation to implement the Rome Statute, the question of crimes against humanity was dealt with very briey, following the so-called ordinary crimes approach. The apparent legeresse with which the matter was tackled was due perhaps in part to the immediate requirements imposed by the ratication of the Statute but also to the conservative and cautious approach favoured at the time with respect to the implementation of international obligations. Hence, the most important and novel change to Chapter 11 envisaged by the reform proposal is the introduction of a denition of crimes against humanity. It is modelled after the Rome Statute, compliance with which has been the most important reason for its adoption, according to the travaux. Apart from the requirement to come closer to the denition contained in the Rome Statute, certain substantial aws in the current provisions were discussed in the proposal. The denitions in Chapter 11 of the Finnish Penal Code are unsatisfactory inasfar as they often simply refer to certain international instruments, namely the Geneva Conventions. This is a natural consequence of the fact that the chapter has its roots in a time before the statutes and jurisprudence of ad hoc tribunals and the ICC provided for more rened denitions. Now that a denition has been agreed upon, it can be used as a model for domestic legislation. After the reform, the specic wrong and the necessary context element of the crime against humanity will be adequately taken into consideration. The proposed denition is based on a translation of Article 7 of the Rome Statute. As with the other crimes, in the travaux it is stressed that this origin should be taken into account in interpretation. As with genocide, reference is made in the preparatory works to the elements of crime as a guide to the interpretation of the section. The most signicant point of divergence is that where the Rome Statute includes an open-ended denition at the end of the article that allows for a dynamic evolution, the suggested Finnish provision does not. The list is intended as exhaustive. Little justication is provided for this divergence, and in light of the overall spirit of the reform it can be seen as an anomaly. However, an open clause is included in subsection (1), namely ‘in another way causes great suffering, serious injury or seriously damages his health’. This means that acts such as involuntary medical experiments or especially severe beatings would fall under the scope of application. In fact, as the requirement of the open clause in the Rome Statute that the acts be of a ‘similar character’30 is omitted, the provision 28

This point has been made by Heikkilä, see supra note 27. See supra note 18 and accompanying text. 30 Article 7(1)(k), Rome Statute. 29

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can be said to be even wider. However, as the open clause is embedded in subsection 1, it does not allow for the dynamic evolution of the entire section on crimes against humanity. A more systematic solution would have been to place it at the end, much in the same way as in the section concerning war crimes. As a detail it can be mentioned that in order to be punishable as a crime against humanity, persecution does not include the additional requirement that it be committed in connection with a crime within the jurisdiction of the Court. Here, the Finnish Penal Code will go further than the Rome Statute, which requires such a connection. Also, it could be mentioned that conduct under subsection 1, amounting to extermination, does not require (again, according to the travaux), that the measures inicted have the aim of destroying the group, whereas the Rome Statute denition does require such an aim. As a consequence of Finnish criminal law tradition, the reform proposal includes an aggravated form of crime against humanity, which requires not only that the accused has committed a crime against humanity, but also that the crime fulls at least one additional criteria and satises an overall assessment of the gravity of the crime. The rst additional requirement is that the crime must have been directed against a large group of people. It is not possible to give a specic number, but the requirement essentially means that in these cases one can speak of crimes on a mass scale and not merely individual and isolated acts. The second additional requirement requires that the crime must have been carried out in an especially brutal, cruel or humiliating manner. For the interpretation of this article, reference can be made to sections concerning murder, aggravated assault and aggravated rape, for example. A typical example would be a rape by multiple perpetrators where members of the group under attack are forced to stand by and watch. Also, in order to be qualied as aggravated, the offence as a whole needs to be of a grave and aggravated nature. In the most serious cases, an aggravated crime against humanity would be comparable to genocide, and in some concrete instances even go beyond at least some forms of genocide in gravity. If found guilty of an aggravated crime against humanity, the perpetrator will be sentenced to a minimum of eight years imprisonment or for life. The considerable difference in the penalty scale reects the nature of the additional requirements of the offence. From the point of view of the principle of legality, which requires predictability, this distinction is a welcome solution. By categorizing the offences on the legislative level, the room for interpretation and allocation of punishment is reduced. The practical signicance of this kind of limitation on the legislative level can be argued to be greatest in ordinary offences that are frequently subjected to the criminal process. In order to achieve the desired effect, this type of gradation requires a long-standing court practice with established understandings of what kind of conduct should be qualied as aggravated or petty. Concerning the type of offences discussed here, it can be antici-

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pated that they will occur rather infrequently and be unique events and therefore less amenable to standardization. This is highlighted by the fact that the provision on crime against humanity will cover conduct of a heterogeneous nature. This might result in problems with regard to the gradation of offences and the courts will be making ‘new law’ in any case. This of course does not mean that the gradation will not have any impact but merely that the mechanism through which it affects future court practice will be different from usual as the grounds for qualication will not always adequately capture the particulars of certain conduct. For instance, acts such as deportation or forcible transfer almost by denition are directed towards a large group of people. This cannot then be used again as grounds for qualication.31 2.c. War Crimes Substantially, the current compatibility of the Penal Code with the war crimes provisions of the Rome Statute is questionable.32 Because of a general trend towards using more general (synthetic) denitions in Finnish criminal law to enhance their readability and communicative effect, the sections on war crimes contain open references to generally acknowledged and established rules and customs of war under public international law, unlike the approach adopted in the drafting of the Rome Statute, favoring exhaustive lists of proscribed activity. Therefore, their scope of application has not been cast in certain terms but rather left for the courts to determine. It is also noteworthy that by making the wording of the war crime provisions open by reference to principles of international law and treaties, they have been made rather comprehensive, at least in the abstract. The same openness and resulting comprehensive nature can be found in the sections on violation of human rights in a state of emergency, where references to international law are used. However, the question of whether the Finnish legislation applies to non-international armed conict has been raised. Since the Finnish provision on ‘war crime’ requires that the crime be committed ‘in an act of war’, it could be argued that it does not apply at all to conicts not of an international character. Therefore, there could exist a gap in the Finnish legislation, so that all acts listed under Article 8(2)(e) of the Statute might not be covered by Finnish war crimes provisions. It could be said in conclusion that because of the wide formulation of the current domestic provisions concerning violations of humanitarian law, their scope is sufcient, especially since the ad hoc tribunals have enhanced the development of customary international humanitarian law. However, their applicability in a concrete case remains to be seen. From the point of view of the principle of legality (which 31 32

This point was made by Prof. Kimmo Nuotio in his Comment of 28 June 2006. The relevant provisions are Sections 1–5, Chapter 11, PC.

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requires uniformity and predictability in the application of the law), the situation is not satisfactory. The provisions on war crimes will be substantially claried and updated in the proposed reform. The core of the proposed legislation is a list of prohibited kinds of conduct. In addition to this list, an open reference to norms of international law will be included, through which the scope of the provisions will be maximal. Perhaps the greatest move forward will be that the distinction between international and noninternational armed conicts will not be reproduced. This has long been the position advocated by NGOs like Amnesty International, and its adoption is indicative of the progressive nature of the reform.33 The reform proposes a clarication of certain basic questions left unanswered in previous law, such as the applicability of war crimes provisions in non-international armed conict. Concerning armed conicts of an international character, the current legislation can be said to be all-inclusive but extremely open, relying heavily on an open reference to norms of international law. The open reference would be retained but supplemented with a list of prohibited conduct. With regard to the list of prohibited conduct contained in Section 5 of the proposal, the Finnish approach differs from that adopted in Germany and proposed in Sweden, in that the different types of war crimes are distinguished according to their protected interest.34 The list will spell out prohibited kinds of conduct in considerable detail, while avoiding the unnecessary casuistry of the Rome Statute in the provision itself and at the same time retaining the open-ended and dynamic style of drafting. This means that the list is essentially of a pedagogical nature. The behavioural guidance provided by this part of criminal law will be greater, since the sections will be eshed out more than before. This is a welcome addition especially in a country such as Finland, whose armed forces do not employ a specic ofcially approved manual in humanitarian law. The open catch-all clause in proposed Section 5(15)35 will ensure that some kinds of prohibited conduct that might be dened in the proposal in a narrower way than in some international instruments such as the protocols additional to the Geneva Conven33

Amnesty International guidelines for implementation are available at <web.amnesty.org/pages/iccimplementation-eng> (visited 9 April 2007). 34 The Helsinki Court of Appeal noted in its Comment of 5 July 2006, that this leads to confusion, since rape, for example, is situated near the end of the list, whereas crimes against the person are to be found at the top. This confusion can be said to be of a pedagogical nature. 35 The proposed section reads as follows: ‘15) commits another act dened as a war crime in Article 8 of the Statute of the International Criminal Court, or in another way violates the rules of an international agreement binding on Finland concerning war, armed conict or occupation or the generally recognized and established laws and customs of war in accordance with international law.’ (Translation by author).

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tions, will still be covered. For example, in the proposed Section 5(9), the perdious use of the Red Cross insignia is criminalized if it leads to death or serious injury.36 In Article 85(3)(f) of Additional Protocol I, however, such misuse is prohibited also if it results in the capture of an adversary. On the face of it, it would seem that the Finnish prohibition is narrower, but the full scope of Article 85(3)(f) of Additional Protocol I is covered by Section 5(15) of the proposal. Again, in subsection 6 of the proposed Section 5, the principle of proportionality is referred to somewhat vaguely, since the requirement that the military advantage be ‘concrete and direct’ has been left out. Further, it should be borne in mind that in Article 8(2)(b)(iv) of the Rome Statute the principle of proportionality is less stringent than in Article 57(2)(b) of Additional Protocol I, the former requiring that the damage inicted be ‘clearly excessive in relation to the concrete and direct overall military advantage anticipated’, while the latter does not employ the words ‘clearly’ or ‘overall’. Because of the open-ended nature of the section, the more demanding standard of Additional Protocol I will come into application anyway.37 The same thinking would apply to the proposed subsection 14 where the age limit for the compulsory recruitment of minors has been set at 15 years, whereas in Article 2 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conicts,38 it is 18 years. Again, in the interest of clarity, it would be benecial if this was explicitly stated.39

36

Section 5(9) of the proposed Chapter 11. The concerns about discrepancies between the Finnish law and rules of humanitarian law were voiced by the Finnish Red Cross and Amnesty International (in collaboration with the Finnish society for Humanitarian Law) in their comments dated 5 June 2006 and 10 July 2006, respectively. 38 Convention on the Rights of the Child, 20 November 1989, in force 2 September 1990, 1577 United Nations Treaty Series 3; Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conict, 25 May 2000, in force 12 February 2002, GA Res. 54/263, Annex I. 39 Comment on the proposal submitted by Amnesty International and the Finnish society of Humanitarian Law, dated 19 July 2006. 37

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Thus, at the time of writing, the open-ended clause covers any breach of the relevant 1907 Hague Conventions,40 the 1925 Gas Protocol,41 the 1935 Procès-verbal on Submarine Warfare,42 the Hague Convention and Protocols on the Protection of Cultural Property,43 the Rights of the Child Convention,44 the ENMOD Convention,45 the Conventional Weapons Convention and its protocols,46 as well as the Rome Statute itself. In addition, the open-ended clause allows to base a conviction on instruments to which Finland is not a party but which are binding on it due to their nature as customary international law, such as the 1856 Declaration on Maritime Warfare,47 the 1868 St 40

Convention (IV) respecting the Laws and Customs of War on Land, with annexed regulations; Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land; Convention (VI) relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities; Convention (VII) relating to the Conversion of Merchant Ships into War-Ships; Convention (VIII) relative to the Laying of Automatic Submarine Contact Mines; Convention (IX) concerning Bombardment by Naval Forces in Time of War; Convention (XI) relative to certain Restrictions with regard to the Exercise of the Right of Capture in Naval War; Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War, The Hague, 18 October 1907, in force 26 January 1910, 205 Consolidated Treaty Series 227; 299, 305, 319, 331, 345, 367, and 395; Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons; The Hague, 18 October 1907, in force 27 November 1909, 205 Consolidated Treaty Series 403. 41 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 17 June 1925, in force 8 February 1928, 94 League of Nations Treaty Series 65. 42 Procès-verbal relating to the Rules of Submarine Warfare set forth in Part IV of the Treaty of London of 22 April 1930, London, 6 November 1936, in force on the same date, 173 League of Nations Treaty Series 353. 43 Convention for the Protection of Cultural Property in the Event of Armed Conict, and Protocol for the Protection of Cultural Property in the Event of Armed Conict, The Hague, 14 May 1954, in force 7 August 1956, 249 United Nations Treaty Series 240 and 358; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conict, The Hague, 26 March 1999, in force 9 March 2004, 38 International Legal Materials 769 (1999). 44 See supra note 38. 45 Convention on the Prohibition of Military or any Hostile Use of Environmental Modication Techniques, New York, 10 December 1976, in force 5 October 1978, 1108 United Nations Treaty Series 151 46 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects; Protocol on Non-Detectable Fragments (Protocol I); Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III); Geneva, 10 October 1980, in force 2 December 1983, 1342 United Nations Treaty Series 137, 168 and 171; Protocol on Blinding Laser Weapons (Protocol IV), Geneva, 13 October 1995, in force 30 July 1998, 35 International Legal Materials 1218 (1996); Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended (Amended Protocol II), Geneva, 3 May 1996, in force 3 December 1998, 35 International Legal Materials 1209 (1996); Protocol on Explosive Remnants of War (Protocol), Geneva, 28 November 2003, in force 12 December 2006, 45 International Legal Materials 1348 (2006). 47 Declaration Respecting Maritime Law, Paris, 16 April 1856, in force on the same date, LXI British State

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Petersburg Declaration48 and the 1899 Declaration on Expanding Bullets.49 The negative consequences of the open-ended clause, such as the ination of the category of war crimes, will be countered through retaining a category of petty war crimes. Concerning the principle of legality,50 the reform proposal seems to adopt the view that the principle of legality in Finnish criminal law should not be equated with any theory of the sources of law or the relation between municipal and international legal orders.51 Even if the current formulation of the principle of legality in the Penal Code and the Constitution might initially suggest that the domestic legal order should prevail when determining the limits of criminal responsibility, this concerns merely the fact that the Penal Code must include some reference to where the substance of the provision can be found, and not exhaustively list even in broad terms the possible substantive features of criminal responsibility. In short, the inclusion of such an open reference substantially amounts to using international law as a source of criminal responsibility in domestic law. The fact remains that according to the proposed and existing provisions, individuals can be found guilty of certain crimes on the basis of international law, albeit the conviction will be formally based on a provision of Finnish law containing an open reference to international law. However, this interpretation of the principle of legality is not wholly unproblematic and it is questionable whether it will be followed by courts called upon to apply the proposed section on war crimes. Generally, the constitutionality of a given act and its application is determined by the Constitutional Law Committee of Parliament, and the courts traditionally do not concern themselves with assessing constitutionality in individual cases. According to Section 106 of the Finnish Constitution a court must not apply a law if its application would be in apparent conict with the Constitution. Taking into account the express emphasis on the principle of legality both in the Constitution and the Penal Code, it is not unthinkable that in some instances a court would hold that the heavy reliance on sources of international law did not constitute an adequate basis for criminal liability. On the other hand, it should be noted that, rst, references to international or European instruments are not infrequent in other parts of the criminal law either. Second, such an open reference to norms of international law contained in a proposal that has undergone an intensive deliberative process ‘under the Papers (1856) 155-158. 48 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Saint Petersburg, 29 November (11 December) 1868, in force on the same date, 138 Consolidated Treaty Series 297. 49 Declaration (IV, 3) concerning Expanding Bullets, The Hague, 29 July 1899, in force 4 September 1900, 187 Consolidated Treaty Series 459. 50 See supra note 8. 51 See supra note 20 and accompanying text.

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reign of the principle of legality’ would in this context point towards an understanding of the principle of legality that emphasizes the ‘pedagogical’ elements of the principle while ensuring the widest possible coverage of conduct. In other words, provisions are drafted in a way that gives the reader at least some idea of what is prohibited conduct while at the same time ensuring that the provisions will adapt to the dynamic evolution of international law and sometimes even going beyond it. That said, the problematic nature of the principle of legality in this context should not be taken in isolation. The rarely applied provision on mistake of law, for example, can act as a safety valve, should a case actually appear where the open reference actually has to be used. As with crimes against humanity, a separate section on aggravated war crimes will be included. If the war crime is directed against a large number of people, or if particularly great or large-scale damage is caused, or the crime is committed in a particularly brutal, cruel or humiliating way, and the offence as a whole is aggravated, the offender will be sentenced for an aggravated war crime according to the proposed Section 6 of Chapter 11 of the Penal Code. The arguments put forward with relation to the crime against humanity apply here as well. The penalty scale will also be the same as for an aggravated crime against humanity, namely eight years up to life. Perhaps more controversial is the distinction made between a ‘standard’ war crime and its petty form. The reform proposes that if the war crime is petty seen as a whole, taking into account the consequence caused or other factors relating to the crime, the offender shall be sentenced for a petty war crime. The applicable penalty will be imprisonment for at most two years. It should be noted that existing legislation also includes a petty form of war crimes, and that this is consistent with the systematic solution adopted in Finnish criminal law drafting. It can be asked whether the proposed penalty for a petty war crime is excessive, since a ne would not come into question, unlike with other petty offences in the Finnish Penal Code.52 Taking into consideration the nature of the less serious acts that could constitute a petty war crime, for example exceeding the local market prices in canteens set up to cater to prisoners of war,53 a ne might in some such cases be a sufcient penalty. The inclusion of all violations of humanitarian law has been met with mixed responses. On the one hand, it has been seen as wholly in line with international humanitarian law.54 On the other hand, the concept of ‘petty war crime’ has also met some criticism.55 However, the fact that a breach of any rule of international humanitarian law binding on Finland, either in the form of customary or treaty law, amounts to a 52

This point was raised by the Finnish Bar Association in their Comment of 31 May 2006. This would be a violation of Article 28, Geneva Convention III. 54 Finnish Red Cross, Comment of 5 June 2006. 55 Kimmo Nuotio, Comment of 28 June 2006. 53

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war crime should not be seen as overly dramatic just because of the fact that the less serious acts would be punishable as petty war crimes. The author considers the broad scope of the proposed denition combined with qualications for aggravated and petty forms perfectly acceptable. Obviously, what is dened as criminal through the law-generating mechanisms of international law is the result of conicting interests and opinions, often resulting in watered-down compromises. There is no reason why this should be a hindrance to progressive states. If failing to pay the annual tax on a car can be a crime in national law, then surely a breach, however minor, of international humanitarian law can and should be a crime as well. That said, the mainstreaming of international criminal law also requires certain assimilation, such as distinguishing between which acts are more serious than others. The wider the reach of the provisions, the more urgent this need is.56

3. General Principles of Criminal Law In the proposal of the government for the ‘rst round’ of implementing legislation,57 the general principles of criminal law contained in the Rome Statute were seen to be relatively similar to the Finnish law. However, in some instances it was indicated that there might be a need for future revision, e.g. with regard to the ‘common purpose’ doctrine (Article 25(3)(d) of the Statute), and in other instances some apparent decits were ignored, e.g. in connection with the responsibility of commanders and other superiors (Article 28 of the Statute). Subsequent to the Implementing Act, the general principles of Finnish criminal law underwent legislative reform.58 In the reform of the General Part of the Finnish Penal Code, international criminal law was not given much notice, as the mindset of the drafters was not geared towards assessing the compatibility of the Penal Code with international criminal law, but rather codifying the more ‘traditional’ aspects of criminal liability. Apparently, the rationale was that the reform codied the general principles of criminal law and would be in force for a long time. Therefore, the long-standing core principles of criminal law doctrine were adhered to. A new Chapter 3 on the general conditions for criminal liability was added to the Penal Code. The chapter includes, among others, denitions of intention and negligence, the requirement of imputability, the punishability of omission and the preconditions for criminal responsibility. Chapter 4 regulates attempt and Chapter 5 the grounds for exemption from criminal liability. 56

A similar point was made by the Ministry for Foreign Affairs in their Comment of 13 July 2006. Supra note 1. 58 Laki rikoslain muuttamisesta (Act to Amend the Penal Code), 13 June 2003, Enactment No. 515/2003, government proposal 44/2002. 57

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The reform proposal for the ‘second round’ of implementing legislation, draft Section 13 of Chapter 11 contains a verbatim translation of Article 33 of the Rome Statute concerning superior orders. Certainly, the general principles of Finnish criminal law are not identical to those of the Rome Statute in every respect. For example, areas such as the signicance of intoxication as an excuse or ground for the mitigation of punishment, which only in extremely exceptional circumstances can come into question in Finland, might differ from the standards of the Rome Statute. From the point of view of complementarity this possible discrepancy is of course not problematic, since a narrower scope for defences makes the reach of the criminal justice system wider. Also, as another minor example, the war crime of conscription of persons under 15 years requires, according to the Rome Statute, that the perpetrator ‘should have known’ of the age of the child in question, whereas the general requirement of intention in Finnish criminal law would seem to require at least some type of positive knowledge.59 However, taking into account the diversity of doctrinal opinion and the fact that the current denition of criminal intent in the Penal Code leaves the matter rather open, the potential problems will no doubt be marginal and seem more dramatic on paper than in the reality of application. In light of the preceding, it can be said that the general doctrines of criminal liability constitute a coherent and effective system and one which in most areas corresponds roughly to the general principles of the Statute. The most important divergence concerns the responsibility of superiors, which is discussed below. 3.a. Command Responsibility The most conspicuous point of divergence between the general principles of Finnish criminal law and those of the Statute is the current lack of a doctrine of command responsibility in the Penal Code. The Penal Code does contain a section on the punishability of omission. Accordingly, an omission is punishable if explicitly so stipulated by means of a statutory denition of an offence, or if a person has not prevented the occurrence of consequences that constitute a criminal offence, provided that the person had a special legal duty to do so.60 This formulation, the relevant parts 59

This note was made by the Ministry for Foreign Affairs in their Comment of 13 July 2006. Section 3 (‘The punishability of omission’), Chapter 3, PC: ‘(1) An omission is punishable if this is specically provided in the statutory denition of an offence. (2) An omission is punishable also if the offender has not prevented the causing of a consequence that accords with the statutory denition, even though he/she had had a special legal duty to prevent the causing of the consequence. Such a duty may be based on: (1) an ofce, function or position; (2) the relationship between the offender and the victim; (3) the assumption of an assignment or a contract; (4) the action of the offender in creating danger; or (5) another reason comparable to these.’ 60

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of which are fashioned after the German doctrines concerning crimes of omission, has been argued more or less to correspond to Article 28 of the Statute, but this line of argument is not too convincing. In the government proposal of the 2003 reform concerning the section, some examples of the responsibility of superiors for the acts of their subordinates that would fall under the provision are given, and organisations of a hierarchical nature (namely prisons) are mentioned. The bulk of the discussion concerning the provision in the proposal, however, deals with other elds of life. By this brief allusion to e.g. prisons, it perhaps points to the recognition of the existence of questions relevant to the concept of superior responsibility but does not ask, let alone answer them. Of course, this section can be used as a basis for argument, but it is a far cry from the spirit of Article 28 of the Statute, which in essence reects an entire doctrine of criminal liability that has so far been overlooked in Finnish law. Even if, through interpretation, some parts of the doctrine of command responsibility could be argued to be covered by the current provision on omission, this surely does not apply to the failure ‘to submit the matter to the competent authorities for investigation and prosecution’, as provided in Article 28(a)(ii) of the Statute. Also, the responsibility of civilian superiors is an open question, since they do not operate in a strictly hierarchical organisation, or at least not to the same extent as military superiors. The proposed 2007 reform makes explicit that the idea of channeling the criminal responsibility of superiors through the existing rules and doctrine on criminal liability for omission is articial and unsatisfactory. The committee comes to the conclusion that the relevant provision of the Penal Code has not been written with the intention that it be applied to serious crimes under international law, and that such extensive interpretations might amount to prohibited analogical application. Also, the committee is of the opinion that the ranges of punishment for offences that might come into question in the absence of a formulation on the responsibility of superiors, concerning merely the breach of duties within the military, do not adequately reect the severity of the criminal conduct in question. Therefore, a completely novel theoretical construction of superior responsibility is proposed. The framework of the proposed Section 12 of Chapter 11 contains a multitude of scenarios, ranging from the superior who had positive knowledge of the intentions and actions of his subordinates and could easily have intervened in their commission, to the superior who did not have such knowledge and for whom the action of subordinates was more difcult to control. The provision can be criticized just for the fact that it assembles too much under the same category. It is centred on the idea of a causal relation between the inaction of the superior and the action of the subordinate. For this reason, the last part of the section concerning the failure to report the crimes to the appropriate authorities does not sit well, since there is usually no causal link to the crime. Dividing the section into different norms would have been perhaps advisable to

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reect the different nature and gravity of the criminal conduct in question.61 All in all, since the provision is roughly a translation of Article 28 of the Rome Statute, it would seem to cover all situations envisaged in the Rome Statute, with the reservation that it seems unclear whether persons who effectively give orders to or exercise command and control over a unit without being formal superiors should be deemed equivalent to a commander or superior, as in the German model.62 A welcome innovation of the proposal is to put military and civilian superiors on an equal footing. The explicit distinction between the two types of superior, employed in the Rome Statute, has been rejected.63 This essentially means that the inaction of both types of superior will in Finnish law be judged using the same mental standard, namely that ‘owing to the circumstances he should have known of the crimes being committed or the intentions of his subordinates to commit such crimes’.64 The higher threshold for non-military superiors as set out in the Rome Statute is not recognized. In the travaux, however, it is made clear that the different nature of military and civilian organizations and the fact that military commanders are required to exercise stricter control over their subordinates than their civilian counterparts, should be taken into account in the interpretation of Section 12, especially when determining the appropriate sentence. Thus, substantially, the difference to the Rome Statute might not be that great. As it is, the proposed section stands in isolation from other forms of criminal liability and its relation to the overall architecture of doctrines of criminal responsibility has been left rather open. Future doctrinal work will show whether this provision and the idea of command responsibility will have a broader impact on criminal law thinking in Finland, or whether general principles of Finnish criminal law will guide the application of the proposed section. For example, aiding as a form of commission of 61 Suggestion to be found in the Comment of Professor Kimmo Nuotio (dated 28 June 2006) and the Comment of Amnesty Inernational (dated 10 July 2006). 62 Ibid. 63 In the round of comments this received mixed opinions, being praised by the Ministry for Foreign affairs but seen as unnecessary by the Prosecutor General’s Ofce (Comment of 22 May 2006). The Helsinki Appeals Court was also in favour of making the distinction (Comment of 5 July 2006). 64 The proposed Section 12 (‘The responsibility of military and other superiors’), Chapter 11, reads as follows: ‘A military or other superior shall be convicted of a crime in the same way as the person committing or taking part in the commission of genocide, crime against humanity, aggravated crime against humanity, war crime, aggravated war crime or petty war crime and the attempt to commit such crimes, that subordinates or troops effectively under the command, supervision and authority of the superior have committed because of the failure of the superior to adequately supervise the activity of the troops or subordinates, if 1) the superior knew or, owing to the circumstances, should have known that the troops or subordinates were committing or about to commit such crimes, and 2) the superior did not initiate such necessary action that was at his disposal and could be reasonably expected of him to prevent the commission of the crimes or report them for prosecution to the appropriate authorities.’ (Translation by author)

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a crime, i.e. intentionally helping the commission of a crime through advice or action, is punishable according to Section 6, Chapter 5, of the Finnish Penal Code. In such cases, the sentence will be reduced automatically, i.e. the penalty will be less for aiding than the actual commission of the offence. Such a reduction is not foreseen in the proposed section on superior responsibility. The lesser responsibility of the superior who negligently does not exercise proper control compared to the superior actually aiding in the commission of the offence will have to be taken into account through interpretation in the determination of penalty scales, without the guidance of such xed standards. Also, the problems of imputability innate to the doctrine itself (for instance, the responsibility of superiors acting negligently for intentional crimes committed by subordinates) have not been addressed in any coherent way. 3.b. Statute of Limitations Currently war crime and violation of human rights in a state of emergency, as well as their aggravated forms, are explicitly mentioned in Section 1 of Chapter 8 of the Penal Code as crimes to which a statute of limitations does not apply.65 According to the same provision, a crime which carries life imprisonment as the maximum penalty is not subject to a statute of limitations either. Because of the applicable penalty scale, this also brings genocide within the scope of this provision and a statute of limitations does not apply. In the proposal of the committee, the maximum penalty for war crimes and crimes against humanity and their aggravated forms will be life imprisonment. Therefore, no statute of limitations will apply. The current exception for war crime and violation of human rights in a state of emergency is to be replaced by a reference to petty war crime, as this offence does not carry the maximum of life imprisonment. With the proposed change any violation of the law of war, however petty, will be open to prosecution indenitely. Strangely, according to the memorandum of the committee, this change was presented as purely technical.

4. Preconditions for the Exercise of Jurisdiction The Constitutional Law Committee of Parliament, which in the absence of a constitutional court has the primary responsibility for the review of constitutionality of legislation in Finland, held66 that the Constitution of Finland did not provide for a 65 This was introduced into the Penal Code through Act 1161/2005. The section concerns the limitations to bringing charges. Through reference in Section 6, Chapter 8, the same rules apply to judgment by a court. Neither are subject to a statute of limitations. 66 Statement 45/2000 of the Constitutional Law Committee.

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wider area of application for the principle of ne bis in idem than is included in international human rights instruments, such as Article 4 of Additional Protocol No. 7 to the European Convention on Human Rights67 or Article 14(7) of the International Covenant on Civil and Political Rights.68 Therefore, the exceptions to the principle of ne bis in idem in Article 20 of the Statute were not seen to be in conict with the Finnish Constitution. According to Section 113 of the Constitution concerning the criminal liability of the President of the Republic, if the Chancellor of Justice, the ombudsman or the government deem that the President of the Republic is guilty of treason or high treason or of a crime against humanity, the matter shall be communicated to parliament. Should parliament decide by three fourths of the votes cast that charges are to be brought, the Prosecutor General shall prosecute the president in the High Court of Impeachment (a separate court that convenes only to handle the exceptional cases referred to in the section) and the president shall abstain from ofce for the duration of the proceedings. In other cases, no charges shall be brought for the ofcial acts of the president. According to the original and creative interpretation of the Constitutional Law Committee and against the original view presented in the government proposal, the concept ‘crimes against humanity’ in Section 113 of the Constitution is to be interpreted independently of Chapter 11 of the Finnish Penal Code and the Rome Statute. Therefore, the crimes set out in Articles 6 through 8 of the Rome Statute were seen to be within the scope of the criminal liability of the president. The liability of members of the government, according to Section 116 of the Constitution, is limited to situations where they have, intentionally or through gross negligence, essentially contravened their duties as a minister or otherwise acted clearly unlawfully in ofce. This was seen to include the crimes listed in the Statute. Thus, in the Finnish domestic legal order, the President of the Republic or members of government can be prosecuted for core crimes. However, such a prosecution is subject to the approval of parliament and therefore the prevailing political climate. As the procedural regulations concerning the bringing of charges against the president, members of government and members of parliament only concern domestic proceedings and not proceedings before the ICC, no constitutional amendment was deemed necessary.

67 Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Strasbourg, 22 November 1984, in force 1 November 1988, Council of Europe Treaty Series No. 117. 68 International Covenant on Civil and Political Rights, New York, 16 December 1966, 23 March 1976, 999 United Nations Treaty Series 171.

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5. Offences against the Administration of Justice Article 70(4) of the Rome Statute does not require the domestic implementation of the crimes against the administration of justice listed in the Statute, but rather that the application of domestic provisions is extended to protect also the integrity of proceedings at the ICC. In the Finnish implementation process, the Statute was seen to require that conduct taking place outside of Finland is criminalized as well. This means that the requirement of double criminality is not to be applied to the said crimes. Without this, Finnish law would not have been applicable to an offence committed by a Finnish national abroad, if the conduct was not criminalized in that jurisdiction as well. The relevant parts of the Finnish legislation are Chapters 15, 16 and 40 of the Penal Code. Chapter 15 of the Penal Code concerns offences against the administration of justice, and Section 12a regulates offences against the administration of justice of the International Criminal Court.69 The provision refers to all relevant sections of the chapter and amounts to equal protection through criminal law for the administration of justice of the ICC. Also, in Section 20 of Chapter 16, which is about offences against public authorities, the ofcials of the ICC have been placed in an equal position with domestic ofcials, where appropriate (as the chapter contains also sections that can by denition apply only to Finnish authorities). Acts such as bribing, obstructing, resisting or violently resisting an ICC ofcial, as well as impersonating an ICC ofcial are criminalized. In Chapter 40, which deals with offences in ofce, ofcials of the ICC are treated equally to domestic ofcials concerning the provisions on bribery. Therefore, an ICC ofcial (a judge, prosecutor or registrar or an ofcial of the Registry or Ofce of the Prosecutor) taking a bribe in Finland would be committing a crime according to Finnish law. Whether charges could actually be brought is of course another matter.

III. Cooperation with the Court 1. Implementation of the Duty to Cooperate in General In the implementation process it was considered most appropriate that national ofcials directly apply the provisions of the Statute . Technically, this was executed by considering all the relevant provisions of Parts 9 and 10 of the Statute to be of a

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Section 12a, Chapter 15, reads: ‘In the application of the provisions on false statement, false denunciation, falsication of evidence and threatening a person to be heard in the administration of justice, a court of law refers also to the International Criminal Court, and a criminal investigation refers also to an investigation referred to in The Statute of the International Criminal Court.’ (Translation by the Ministry of Justice)

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legislative nature and put into force as law in Finland.70 Domestic legislation is applied as supplementary to the Statute in instances where the Statute does not contain a provision on a certain matter. (1) The competent Finnish authorities shall be under an obligation to give judicial assistance to the International Criminal Court, as requested by the Court, for the investigation and prosecution of crimes within the jurisdiction of the Court. (2) Judicial assistance shall be given in accordance with the provisions of the Act on International Legal Assistance in Criminal Matters (4/1994), where applicable, unless otherwise provided in the request. In the provision of judicial assistance, coercive measures may be resorted to as provided for in the Coercive Measures Act (450/1987).

This essentially means that all requests from the ICC shall be complied with without exception. This approach is founded on the idea that only those limitations arising from the Statute itself can be applied and that the interpretation of the Court is decisive in this respect.71 The Implementing Act itself contains no grounds for refusal. Quite the contrary, the Act requires all requests by the ICC to be complied with as stated in the request itself. Thus it would appear that even the ground for refusal for reasons of national security as set out in Article 93(4) of the Statute cannot be resorted to by the Finnish authorities. This is based on an interpretation of the wording of Article 93(4) that says a state party ‘may’ refuse a request, thus leaving it up to the states themselves to decide whether and at what stage to appeal to this ground for refusal. As said, this possibility has been excluded in Finnish law. This complete exclusion of grounds for refusal extends also to what can be seen as an ‘ordre public’ ground for refusal in Article 93(3). The Finnish authorities will have only the possibility to consult with the ICC on aspects of the request, but no modication of the request can be demanded. The Coercive Measures Act72 regulates the use of certain measures in connection with investigations and cooperation with the ICC. It sets out the preconditions and scope of the measures, the authorities with jurisdiction and the procedure to be followed. A noteworthy feature of the Finnish system is the possibility of police ofcials autonomously to use coercive measures during criminal investigations. For example, the 70

Government proposal 161/2000 at 97–102. See also Risto Eerola and Asko Välimaa, ‘Finland’, in Claus Kress, Bruce Broomhall, Flavia Lattanzi, and Valeria Santori (eds.), The Rome Statute and Domestic Legal Orders. Volume II: Constitutional Issues, Cooperation and Enforcement (Nomos Verlagsgesellschaft: Baden-Baden, 2005) 71–90 especially at 80–81 on which this overview draws. 71 Eerola and Välimaa, supra note 70, at 82–84. 72 Coercive Measures Act, adopted on 30 April 1987, Enactment No. 450/1987.

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arrest of a person for a period of a few days,73 a travel ban,74 a seizure of documents or items,75 and a search of premises or persons76 can be ordered by the police without the involvement of the courts. Measures such as restraining orders, freezing of property,77 telesurveillance and wiretapping78 are, however, decided by a court. According to Section 2 of the Implementing Act, requests for assistance can be received by the Ministry of Justice but it also allows the ICC to directly contact the appropriate Finnish ofcials. In essence this means (read together with Section 4, according to which Finnish ofcials are under a duty to comply with requests), that the Finnish criminal justice agencies have been effectively placed at the disposal of the ICC. The ICC may contact them directly and issue what amount in practice to binding orders to carry out requested tasks. In practice, of course, requests would be communicated through the ministry and the executing ofcials would be in close consultation with the ministry in the execution of requests. The special treatment given to the ICC when requesting cooperation can be explained as an expression of extreme trust towards the ICC. To put this in perspective, it must be added that Finland is perhaps not the most likely candidate for requests from the ICC. The realisation that cooperation with the ICC will not place a large burden on the Finnish criminal justice system and that the requests will most likely not be politically controversial has surely been a factor in drafting the extremely progressive legislation.

2. Specic Forms of Cooperation As concerns cooperation other than surrender, Section 4(1) of the Implementing Act clearly states that any kind of cooperation requested will be provided. In the initial round of implementation, certain problematic areas of the Statute were identied and discussed from the point of view of the Finnish constitutional order. For instance, according to Article 57(3)(d) of the Rome Statute, the Pre-Trial Chamber can authorize the Prosecutor to take specic investigative steps within the territory of a state party without having secured the cooperation of that state. In addition, Article 99(4) gives the Prosecutor powers to execute some requests for cooperation independently and without the compliance or assistance of the authorities of the requested state. Since these powers in either case do not include compulsory measures and the whole of 73

Chapter 1, Section 6, Coercive Measures Act. Chapter 2, Section 3, Coercive Measures Act. 75 Chapter 4, Section 5, Coercive Measures Act. 76 Chapter 5, Section 3, Coercive Measures Act. 77 Chapter 3, Section 2, Coercive Measures Act. 78 Chapter 5a, Section 5, Coercive Measures Act. 74

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the Statute can be seen as the kind of international cooperation for the protection of peace and human rights and for the development of society envisaged by Section 1(3) of the Finnish Constitution, the provisions were not seen to be in conict with the sovereignty of Finland.

3. Arrest and Surrender According to Section 9(3) of the Constitution, Finnish citizens shall not be prevented from entering Finland, nor shall they be deported, extradited or transferred from Finland to another country against their will. The wording of the section makes it impossible to get around the conict by emphasizing the difference in nature of ‘extradition’ and ‘surrender’, as explained in Article 102 of the Statute. Therefore, on this point a conict with the Finnish Constitution was seen to prevail. However, in the Finnish constitutional order there exists a procedure for the acceptance and bringing into force of international obligations that override the Constitution, without making changes to the wording of the Constitution itself. The procedure requires a majority of two thirds of the votes cast.79 This procedure was utilized, and the Constitution itself was not changed. Consequently, the wording of Section 3(1) of the Implementing Act, concerning surrender reads as follows: ‘Upon a request made by the International Criminal Court, a person found in the territory of Finland must be arrested and surrendered to the Court in accordance with the request.’ In the application it is of no relevance whether the person is of Finnish nationality. The domestic legislation concerning extradition comes into play only as concerns the procedure to be followed in the technical execution of the request.80

4. Enforcement of Sentences Section 8(1) of the Implementing Act states that [t]he enforcement of forfeiture of proceeds, property and assets derived from the crime, ordered by the International Criminal Court, shall take place in Finland in accordance with the provisions of the Act on International Cooperation in the Enforcement of Certain Penal Sanctions (21/1987) where applicable. However, the provisions in Section 3 of the Act, concerning the conditions for enforcement, shall not be applied.

79 80

Articles 94 and 95, Constitution. Eerola and Välimaa, supra note 70, at 84–85.

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According to Section 9 of the Act, ‘[t]he enforcement of nes and reparations to victims ordered by the International Criminal Court shall take place in Finland as requested by the Court.’ Therefore, Finland is in a position to provide said assistance. Concerning voluntary (non-obligatory) modes of cooperation, in the summer of 2003, Finland made a declaration to the ICC according to which Finland will be willing to accept persons sentenced by the Court, for the purpose of enforcement of sentences of imprisonment in Finland. According to Article 110 of the Statute, the state of enforcement shall not release the person before expiry of the sentence pronounced by the Court and the Court alone shall have the right to decide any reduction of sentence. Since the power of presidential pardon of the President of Finland, provided for in Section 105(1) of the Constitution, extends to all sentences being served within the jurisdiction of Finland, this article of the Statute was seen to be in conict with the Constitution. As mentioned, the Implementing Act was passed in the procedure allowing for the inclusion in the legal order of provisions which override the Constitution without making explicit changes to the Constitution. Consequently, Section 7(1) of the Implementation Act was fashioned in a way that clearly states that Finland does not attach conditions to the enforcement of sentences of imprisonment in its domestic legislation, thereby excluding presidential pardon.81

IV. Conclusions In conclusion, the current Finnish approach to the implementation of the Rome Statute can be said to be rather progressive both as concerns cooperation with the ICC and the material criminal law (with the caveat that the proposed reform has not yet been through the parliamentary process). The approach is based on and justied by a strong sense of trust for the ICC and the mechanisms of international criminal law in general. This can be seen both in the approach to cooperation with the Court and the norms of material criminal law. In both respects, Finland has voluntarily delegated some of its sovereignty to the international sphere. As concerns the general doctrines of criminal liability, a more conservative outlook has been retained. To the author, this would appear to be a wise solution. Unlike the denitions of offences, which are not in the same way bound to tradition and resistant to change, doctrines of criminal liability have long traditions in the various jurisdictions involved in the project of 81

The section reads: ‘A sentence of imprisonment imposed by the International Criminal Court shall be enforced in Finland, as requested by the Court, in accordance with the provisions of the Act on International Cooperation in the Enforcement of Certain Penal Sanctions (21/1987). However, the provisions in section 3 of the Act, concerning the conditions for enforcement, shall not be applied.’ (Translation by the Ministry of Justice).

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international criminal justice. Conceptions such as intentional action are in practical application almost intuitively similar in different jurisdictions and should differences appear, they would probably be rooted far deeper in the legal culture than merely the surface structures of the written law. Therefore, the often extremely dynamic way in which international criminal law develops can potentially provide more difculties than solutions if automatically and uncritically followed on the national level. Surely, if the ICC would in practice intervene in the work of a functioning legal system, it will have strayed from the mandate originally envisaged for it.

Implementation of the Rome Statute in Germany Martin Heß,* Nandor Knust** and Christine Schuon***

I. Introduction The Federal Republic of Germany signed the Statute of the International Criminal Court1 on 10 December 1998 and ratied it two years later, on 11 December 2000. Ratication was followed by a number of implementation measures, of which the two most important are the Act on Cooperation with the International Criminal Court (‘Cooperation Act’)2 and the Code of Crimes against International Law (‘CCIL’).3 The latter Code is an independent codication of crimes against international law that broadly resorts to the general principles of domestic criminal law. To the extent that the denitions of crimes contained in it are more specic, they prevail over those of the German Criminal Code.4 In order to draft the Code of Crimes against Interna*

Ass. iur., M.Jur. (Oxon), Ph.D. candidate, Ludwig-Maximilian University, Munich (Germany). Ph.D. candidate, International Max Planck Research School for Comparative Criminal Law, Freiburg (Germany). *** Ass. iur., Ph.D. Candidate, Humboldt University, Berlin (Germany). The authors are grateful to Ministerialdirigent Peter Wilkitzki for his valuable advice. 1 Rome Statute of the International Criminal Court, Rome, 17 July 1998, in force 1 July 2000, 2187 United Nations Treaty Series 90 (hereinafter also ‘RS’). 2 Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof, contained in Article 1 of the Gesetz zur Ausführung des Römischen Statuts des Internationalen Strafgerichtshofes (‘Implementation Act’), 21 June 2002, in force 1 July 2002, Bundesgesetzblatt (Federal Law Gazette, ‘BGBl.’) 2002 I, at 2144. 3 Völkerstrafgesetzbuch, contained in Article 1 of the Gesetz zur Einführung des Völkerstrafgesetzbuches (Act to Introduce a Code of Crimes against International Law), 26 June 2002, in force 30 June 2002, BGBl. 2002 I, at 2254. Informal translations in Arabic, Chinese, French, English, Russian and Spanish are available on the web page of the Max-Planck Institute for International Criminal Law at <www.iuscrim. mpg.de/forsch/online_pub.html> (visited 7 May 2007). 4 Strafgesetzbuch (German Criminal Code, hereinafter also ‘CC’), 15 May 1871, Reichsgesetzblatt (Ofcial Journal of the German Reich) at 127. On the lex specialis principle in German criminal law see Herbert Tröndle and Thomas Fischer, Strafgesetzbuch und Nebengesetze (55th edn, Beck: Munich, 2007), before Section 52, marginal notes 39-46. **

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tional Law the Ministry of Justice established a working group, which was composed of academics5 and members of the Ministries of Justice, Home Affairs and Defence. All the acts implementing the Rome Statute entered into force no later than the Rome Statute itself. By means of the Act ratifying the Rome Statute6 pursuant to Article 59(2) of the German Basic Law,7 the Rome Statute became part of the German legal order. Provisions of the Rome Statute which unequivocally stipulate rights and duties of individuals are subject to direct application.8 They enjoy the status of an act of parliament, which means that subsequent national law would prevail over them. Nevertheless, courts and public authorities are held to interpret the law with a view to avoiding collisions with Germany’s international legal obligations.9 Moreover, the ICC is one of the few international institutions to which Germany has conferred sovereign powers. 10 The legal framework of the ICC was held to meet the constitutional requirements for such a conferral of sovereign powers, like respect for the rule of law.11 As a consequence of this conferral, any acts or decisions by the ICC have direct effect in the German legal order. In case such acts or decisions should be in conict with German law (including the constitution), the question of precedence depends on the Rome Statute and any rules of conict it may contain.12

5

The academic members were Kai Ambos, Horst Fischer, Claus Kreß, Thomas Weigend, Gerhard Werle and Andreas Zimmermann. 6 Internationaler Strafgerichtshof-Statutgesetz (ICC Statute Act), 17 July 1998, in force 8 December 2000, BGBl. 2000 II, at 1393. 7 Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany, hereinafter ‘Basic Law’ or ‘GG’), 23 May 1949, English translation in Albert Blaustein, Constitutions of the World (Oceana Publishers: Dobbs Ferry, 1995), vol. VII. 8 Rudolf Geiger, Grundgesetz und Völkerrecht (3rd edn, Beck: Munich, 2002) at 171-177. See also Entwurf eines Gesetzes zur Ausführung des Römischen Statuts des Internationalen Strafgerichtshofs of 17 June 1998 (Draft Legislation for the Rome Statute Implementation Act, hereinafter ‘Ofcial Comments’), Bundestagsdrucksache (‘BT-Drs.’) 14/8527, 13 February 2002, at 40. 9 This is called ‘völkerrechtskonforme Auslegung’, see Geiger, ibid., at 189-191. 10 To this effect, the act of ratication (supra note 6) was based on Section 24(1), Basic Law. 11 Entwurf eines Gesetzes zum Römischen Statut des Internationalen Strafgerichtshof vom 17. Juli 1998 (Draft ICC Statute Act), BT-Drs. 14/2682, 14 February 2000, at 7; Ofcial Comments, supra note 8, at 96. 12 Albrecht Randelzhofer, ‘Article 24’, in Theodor Maunz et al., Grundgesetz. Kommentar (30th supplement, Beck: Munich, 1992), vol. 3, marginal note 12. An example for a rule of conict contained in the Rome Statute is its Art. 27(2), cf. infra Section III.3.f.

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II. Complementarity 1. General Principles of Jurisdiction Section 1 of the Code of Crimes against International Law establishes the universality principle (Weltrechtsprinzip). Under this principle, the jurisdiction of German courts is extended to genocide, crimes against humanity and war crimes, even when these crimes are committed abroad and do not show any particular link to Germany. Before the introduction of the Code, German courts could exercise universal jurisdiction de lege lata13 only with regard to genocide or murder of a person protected under the Geneva Conventions14 and only if a particular link to Germany could be established.15 The solution found in the form of Section 1 of the Code now provides for unconditional universal jurisdiction and reaches beyond the more restrictive provisions established in Articles 12 to 14 of the Statute.16 The only requirement for the exercise of universal jurisdiction is that the offence in question must be a serious criminal offence (Verbrechen), i.e. an offence with a mandatory minimum sentence of one year of imprisonment.17 Universal jurisdiction therefore does not apply to the less serious offences included in Section 13 of the CCIL (violation of the duty to supervise) and Section 14 of the CCIL (omission to report a crime). Jurisdiction for these crimes has to be based on the territoriality and active and passive personality principles.18

13

See former Section 6 no. 1 (genocide) and the still existing no. 9, CC (the latter refers to the four Geneva Conventions). With the introduction of Section 1, CCIL, the former Section 6 no. 1, GCC, was deleted; Section 6 no. 9, CC, however, was kept, due to its residual character since it provides that any criminal conduct abroad may be prosecuted if binding international treaties should so require. See Matthias Neuner, ‘General Principles of International Criminal Law in Germany’ in Matthias Neuner (ed.), National Legislation Incorporating International Crimes — Approaches of Civil and Common Law Countries (BWV: Berlin, 2003) 105-136 at 106. 14 Geneva Conventions of 12 August 1949, in force 21 October 1950, 75 United Nations Treaty Series 31, 85, 135 and 287. 15 Judgement of the Federal Supreme Court (Bundesgerichtshof), 30 April 1999, 45 Sammlung der Entscheidungen des Bundesgerichtshofes in Strafsachen (Collection of Decisions of the Federal Supreme Court in Criminal Matters, hereinafter ‘BGHSt’) 65 et seq. 16 According to the political compromise of Rome, the jurisdiction of the ICC may in exceptional circumstances reach beyond the territory of its State Parties (see Articles 13 (b) and 12 (3) RS), thereby remaining signicantly narrower than the principle of universal jurisdiction. See Sharon A. Williams, ‘Article 12’, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Nomos: Baden-Baden, 1999) marginal note 18. 17 Section 12, CC. 18 Sections 4 to 7 and 9, CC.

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2. Core Crimes Before the introduction of the Code of Crimes against International Law, domestic German law did not offer a list of crimes comparable to Articles 6 to 8 of the Rome Statute and suffered from certain shortcomings with regard to international criminal law. Not every offence under international law was punishable, nor were the specic wrongs of crimes against international law always reected.19 Thus, when signing the Rome Statute, the German government expressed its intention to adapt German criminal law to the Statute and to general international humanitarian law,20 though the Rome Statute itself did not establish any obligation to do so.21 However, the aim to remedy former deciencies fully and to comply with the highest possible standards of customary international law as well as the German constitutional principle of legal certainty22 did not allow the legislator merely to copy the wording of the Rome Statute into domestic law.23 A transposition as a ‘modied codication’24 — comprehensive and independent — was inevitable. Germany ratied the Convention for the Prevention and Punishment of the Crime of Genocide in 195425 and subsequently introduced Section 220a into the Criminal Code, which criminalized the crime of genocide under domestic law. The wording of this section mirrored Article 3 of the Genocide Convention. Former Section 6 no. 1 of the Criminal Code granted German courts universal jurisdiction for the crime of genocide. With the introduction of the Code of Crimes against International Law the legislator moved the provision from the Criminal Code to Section 6 of the new Code. This move highlights that genocide does not only affect the individuals concerned but humankind per se.26 With only a few changes, the new provision leaves the substance 19

For a detailed analysis see Gerhard Werle and Florian Jessberger, ‘International Criminal Justice is Coming Home: The New German Code of Crimes against International Law’, 13 Criminal Law Forum (2002) 191-223 at 196 et seq. 20 See Gerhard Werle, ‘Konturen eines deutschen Völkerstrafrechts’, 56 Juristenzeitung (2001) 885-895 at 885. 21 With the exception of Article 70(4), the Rome Statute does not impose an obligation on States Parties to modify their substantive criminal law. See further Werle and Jessberger, ‘International Criminal Justice’, supra note 19, at 194. 22 Article 103(2), GG, sets strict rules as to the formulation of criminal law. 23 For a detailed presentation of the different options to implement the Rome Statute, see Werle, ‘Konturen’, supra note 20; Werle and Jessberger, ‘International Criminal Justice’, supra note 19, at 200, note 44. 24 Werle and Jessberger, ‘International Criminal Justice’, supra note 19, at 200. 25 BGBl. 1954 II, at 729. 26 Andreas Zimmermann, ‘Implementing the Statute of the International Criminal Code: The German Example’ in Lal Chand Vorah et al. (eds.), Man’s Inhumanity to Man (Kluwer: The Hague, 2003) 977-994 at 981.

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of the provision untouched. For example, the established doctrine of international27 as well as German law28 that even acts against only one victim may constitute genocide, provided that the offender has acted with the necessary specic mens rea, was codied in the new provision. Another change was merely linguistic, replacing the outdated term for ‘ethnic group’ (‘durch ihr Volkstum bestimmte Gruppe’) with a more modern term (‘ethnische Gruppe’).29 Directly after World War II, the Allied Powers granted German courts the authority to prosecute Germans for crimes against humanity committed in this war.30 Soon after regaining sovereignty this authorization was abrogated31 and crimes against humanity per se could no longer be prosecuted. Most of the acts that would have amounted to crimes against humanity were still punishable according to general criminal law as ordinary crimes like murder or manslaughter, which did not reect the specic wrongs of crimes against humanity. Further, there were a few gaps where a certain conduct was punishable under international criminal law but not under domestic German law. One example is the crime of apartheid.32 Section 7 of the CCIL now re-introduces crimes against humanity and follows generally the overall structure of Article 7 of the Rome Statute. Thus, the criterion of ‘widespread or systematic attack’ can be found in the chapeau prior to the catalogue of types of prohibited conduct, which in their internal order have been re-arranged according to their seriousness. As legal denitions are rather uncommon in German criminal law, the legislator refrained from including the denitions contained in Article 7(2) Rome Statute directly into the text of the Code of Crimes against International Law, which led to a slightly different phraseology of the various acts and to the dropping of the requirement of the furtherance of a particular policy through the attack.33 There are a few deviations and modications to be found in the implementing Code of Crimes against International Law, most of which were introduced due to the re27

Gerhard Werle, Principles of International Criminal Law (Asser: The Hague, 2005) at 199. For the state of the doctrine before the entry into force of the CCIL see Albin Eser, ‘Section 220a’, in Adolf Schönke and Horst Schröder (eds.), Strafgesetzbuch — Kommentar (26th edn, Beck: Munich, 2001) marginal note 4. 29 See Andreas Zimmermann, ‘Auf dem Weg zu einem deutschen Völkerstrafgesetzbuch — Entstehung, völkerrechtlicher Rahmen und wesentliche Inhalte’, 35 Zeitschrift für Rechtspolitik (2002) 97-103 at 101. 30 Allied Control Council Law No. 10, 20 December 1945, Ofcial Gazette of the Control Council for Germany, No. 3, 31 January 1945, at 50. 31 Erstes Gesetz zur Aufhebung des Besatzungsrechts (First Act on the Abrogation of Occupation Laws), 30 May 1956, BGBl. 1956 I, at 437. 32 Now Article 7(1)(j), RS. For further details see Werle and Jessberger, ‘International Criminal Justice’, supra note 19, at 198. 33 See Art. 7(2)(a), RS. 28

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quirements of the constitutional principle of legal certainty or to follow even higher standards of customary international law.34 Systematic reasons lie behind the inclusion of both mitigating (minder schwere Fälle) and aggravating (Qualikationstatbestände) circumstances in Subsections 2 to 4.35 Though being party to all four Geneva Conventions of 194936 and both Additional Protocols of 1977,37 none of these international instruments had been transformed into domestic criminal law prior to the Code of Crimes against International Law. Offences under general criminal law such as murder, manslaughter etc. were deemed to be sufcient to punish grave breaches of the four Conventions and Additional Protocol I, especially since German courts could assert jurisdiction in such cases.38 It appeared, however, inappropriate to cover the specic wrongs of these acts.39 Thus, when drafting the provisions on war crimes, the German legislator intended not only to enact legislation in line with the Rome Statute but also to full its international obligations, especially under the Geneva Conventions and the First Additional Protocol.40 It was further planned to adapt German criminal law to the standard of customary international law, where the provisions of the Rome Statute — mainly due to political resistance — fell short of representing the highest possible benchmark. As a result, the structure of the Code of Crimes against International Law under the sub-heading ‘War Crimes’41 differs signicantly from the provisions set out in Article 8 of the Rome Statute. The Code re-arranges the different provisions according to the nature of the protected interests.42 As far as it is in line with customary international 34

The scope of this article does not allow a more detailed study of all such deviations and modications. For the most signicant examples see the very thorough analysis of Andreas Zimmermann, ‘Main Features of the New German Code of Crimes against International Law (Völkerstrafgesetzbuch)’ in Neuner (ed.), National Legislation, supra note 13, 137-155 at 140 et seq., and Werle and Jessberger, ‘International Criminal Justice’, supra note 19, at 205 et seq. 35 Minder schwere Fälle and Qualikationstatbestände are common tools in German criminal law to adjust the sentence to the seriousness of the crime by either decreasing or increasing the minimum penalty; see Hans-Heinrich Jeschek and Thomas Weigend, Lehrbuch des Strafrechts, Allgemeiner Teil (5th edn, Duncker & Humboldt: Berlin 1996) at 168. 36 See supra note 14. 37 Protocols I and II Additional to the Geneva Conventions of 12 August 1949, Geneva, 8 June 1977, in force 7 December 1978, 1125 United Nations Treaty Series 3 and 609. 38 Section 6 no. 9, CC. 39 See Zimmermann, ‘Implementing the Statute’, supra note 26, at 985. 40 See Bundesministerium der Justiz (ed.), Arbeitsentwurf eines Gesetzes zur Einführung des Völkerstrafgesetzbuchs — mit Begründung (2001) at 20. 41 Sections 8 to 12 in the second chapter of part 2. 42 Sections 8 to 10, CCIL, cover the so called ‘Geneva Law’ (Section 8: war crimes against persons; Section 9: war crimes against property and other rights; Section 10: war crimes against humanitarian operations

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law, the Code removes the traditional distinction between international and non-international armed conicts.43 As can be seen from the judgements of the ICTY44 and the Statute of the ICTR,45 this extension reects the current level of customary international law.46 It can therefore be said that the catalogue of war crimes covered by the Code of Crimes against International Law proves to be considerably broader than Article 8(2) of the Rome Statute.47 In line with the general structure of German criminal law, special provision is made for aggravating and mitigating circumstances.48

3. General Principles of Criminal Law As the principal norm of the Code of Crimes against International Law on general principles of criminal law, Section 2 of the CCIL provides that, unless otherwise stated in the Code of Crimes against International Law, the general provisions of the Criminal Code are applicable. Given that the general principles of international criminal law are only in a state of emergence,49 the German legislator decided to integrate the German provisions on international crimes into the established and elaborate domestic system of general principles of criminal law. In doing so, the legislator also attempted to avoid any unforeseeable complications in applying the law that might arise from having two different general parts.50 The reference to domestic law is based on the belief that the application of domestic rules in this respect will lead by and large to appropriate results and emblems); whereas Sections 11 and 12, CCIL, deal with the so-called ‘Hague Law’ (Section 11: war crimes consisting of the use of prohibited methods of warfare; Section 12: war crimes consisting of the employment of prohibited means of warfare). 43 Only Sections 8(3), 9(2), 11(3), CCIL, are solely applicable in international armed conicts. 44 Prosecutor v. Tadi, Case no. IT-94-1, ICTY Appeals Chamber Decision (2 October 1995), para. 128 et seq.; Prosecutor v. Kupreški et al., Case no. IT-95-16, ICTY Trial Chamber Judgement (14 January 2000), paras 521 and 524. 45 Article 4 of the Statute grants the ICTR jurisdiction to adjudicate breaches of Common Article 3 of the Geneva Conventions. See Statute of the International Tribunal for Rwanda, Annex to Security Council Resolution 955 of 8 November 1994 (UN Doc. S/RES/955 (1994)) as amended. 46 Gerhard Werle and Volker Nerlich, ‘Die Strafbarkeit von Kriegsverbrechen nach deutschem Recht’, Humanitäres Völkerrecht (2002) 124-134 at 127. 47 Again, the scope of this article does not allow for a detailed examination; a much more complete analysis can be found in Zimmermann, ‘Main Features’, supra note 34, at 147. 48 Sections 8(4) and (5), 11(2) and (3), and 12(2), CCIL. 49 The Rome Statute represents the rst attempt to codify a general part of international criminal law, thus not yet showing the same degree of maturity as the more elaborate provisions of its special part. See Thomas Weigend, ‘Zur Frage eines “internationalen” Allgemeinen Teils’, in Bernd Schünemann et al. (eds), Festschrift für Claus Roxin (de Gruyter: Berlin, 2001) 1375-1399 at 1386. 50 Werle, ‘Konturen’, supra note 20, at 889.

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which are consistent with the Rome Statute.51 As will be shown in the following, some special provisions were introduced into the Code of Crimes against International Law that differ notably from the rules of the Rome Statute. 3.a. Command Responsibility The principle of command or superior responsibility under international law is threefold. It establishes individual liability of persons in authority for the failure to prevent, report or punish the crimes of their subordinates.52 The German legislator faced the challenge that the three situations envisaged in Article 28 of the Rome Statute do not correspond to two established concepts of German criminal law. Those are, on the one hand, the concept of omission to act53 and on the other hand the concept of breach of duty to supervise.54 The solution was, rst, to introduce a norm which enables the courts to convict a superior as (co-)perpetrator if he or she intentionally, wilfully or knowingly omitted to prevent the imminent commission of a crime by his or her subordinate.55 Secondly, two separate offences of breach of other supervisory duties and omission to report a crime56 were introduced as less serious offences, which establish liability for mere negligence. Thirdly, as a provision regarding the failure to punish has not been included into the Code of Crimes against International Law, recourse needs to be had to an existing, albeit narrower, offence of obstruction of justice57 if the superior knowingly failed to punish a subordinate for an offence. The distinction between breach of the duty to supervise and omission to prevent a crime has its reason in the principle of guilt, a norm of a constitutional nature which requires that a perpetrator is only convicted for conduct which is directly attributable

51

Werle and Jessberger, ‘International Criminal Justice’, supra note 19, at 202. Article 28(a)(ii) and (b)(iii), RS. While the statutes of the ad hoc tribunals expressly penalized only the failure to prevent or to punish, the third element was explicitly recognized by the jurisprudence of the ICTY, see Prosecutor v. Blaški, Case No. IT-95-14, ICTY Trial Chamber Judgement (3 March 2000), para. 302; see Neuner, ‘General Principles’, supra note 13, at 127. 53 According to German criminal law (Section 13, CC), a person who, in violation of a special legal duty to that effect, fails to prevent a certain act featuring all elements of a criminal offence will be punishable in the same way as an active perpetrator (Unterlassensstrafbarkeit). 54 In such a case, the superior would not be liable for committing the “main” criminal offence, but rather for the mere and distinct offence of the breach of his duty to supervise, which is generally punished with a lesser sentence. 55 Section 4, CCIL. Such conviction or one as aider, abettor or instigator is not possible if the superior acts only negligently. 56 Sections 13 and 14, CCIL. 57 Sections 258 and 258a, CC. 52

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to him.58 The political message sent by the much lighter maximum sentence for breach of the duty to supervise, however, is regrettable.59 Nevertheless, as opposed to the political compromise of Article 28(b)(i) of the Rome Statute, the German approach has the advantage of the superior’s liability for negligence not depending on his or her status as a military commander or a civilian.60 In contrast, regarding the duty to report,61 the German solution is narrower than Article 28(a)(i) of the Rome Statute as it does not prescribe any liability for a negligent failure to report. The decision not to create a separate and independent offence for the failure to punish and to rely instead on general norms of the Criminal Code seems to be over-cautious and fails to reect appropriately the specic wrong of such acts.62 3.b. Other General Principles The different forms of participation listed in Section 25(3)(b)-(d) of the Rome Statute are sufciently covered by the general principles of the German Criminal Code.63 The Code of Crimes against International Law does not contain any explicit provisions on self-defence, which necessitates reference to the general norm of Section 32 of the Criminal Code. As opposed to Article 31(1)(c) of the Rome Statute, this provision gives less weight to the principle of proportionality as a limitation of the right to self-defence.64 Nevertheless, this divergence is mitigated by the fact that, according to the legislator, ‘the relevant provisions of the Rome Statute shall apply for the application and interpretation of Section 32 of the Criminal Code’.65 58

For the constitutional rank of the principle of guilt (Schuldprinzip) see the Judgement of the Federal Constitutional Court, 25 October 1966, 41 Entscheidungen des Bundesverfassungsgerichts (Decisions of the Federal Constitutional Court — BVerfGE) 121 at 125. 59 Neuner, ‘General Principles’, supra note 13, at 129. 60 In this respect, Section 13, CCIL, only provides for slightly different mens rea standards. Thus, a military superior will be held liable if the commission of the offence by the subordinate was ‘discernible’, but the civilian superior only if such an offence was ‘discernible to the superior without more’. However, both categories of superiors can exculpate themselves by proving that a proper execution of their duties would not have prevented the offence. (Translation by Brendan Bleehan and Brian Duffet, <www.iuscrim.mpg. de/forsch/legaltext/vstgbleng.pdf>, last visited 31 May 2007) 61 Section 14, CCIL. 62 Neuner, ‘General Principles’, supra note 13, at 134-135. 63 Sections 26 et seq., CC. 64 According to the jurisprudence of German courts, self-defense is possible for the defense of any legally protected interest, however marginal it may be (Tröndle and Fischer, Strafgesetzbuch, supra note 4, Section 32, marginal notes 6-6c), and only the defensive action but not its consequence must be proportionate to the attack; see Federal German Criminal Court, 27 BGHSt 336 at 337; Tröndle and Fischer, ibid., marginal note 16. 65 Entwurf eines Gesetzes zur Einführung des Völkerstrafgesetzbuches (Draft of a Law Introducing the

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The provision concerning duress contained in Article 31(1)(d) of the Rome Statute does not reect the distinction in German doctrine between the concepts of justication and excuse.66 As it would have blurred this distinction, there was no implementation of the rules as set out in the Rome Statute.67 This situation permits the accused person to rely on the slightly broader excuse of duress under Section 35 of the Criminal Code.68 According to Section 3 of the CCIL,69 the accused is also to be considered excused if he or she acted in execution of a superior order without noting that the relevant order was unlawful. This excuse, however, can only be invoked if the order was not obviously or manifestly unlawful.70 As there is no provision in the Code of Crimes against International Law concerning the necessary mens rea of an offence, Section 15 of the Criminal Code applies. This provision by and large leads to results consistent with the Rome Statute. The main difference is that, pursuant to the Criminal Code, dolus eventualis sufces to establish mens rea.71 Furthermore, as opposed to Article 32(2) of the Rome Statute,72 German criminal law considers a mistake of law (Verbotsirrtum) a valid excuse.73 Nonetheless, as the circumstances under which this excuse may be invoked are rather limited,74 this Code of Crimes Against International Law), BT-Drs. 14/8524, 13 March 2002, at 15 (translation by Brian Duffet, <www.iuscrim.mpg.de/forsch/legaltext/VStGBengl.pdf>, visited 31 May 2007, at 32 ). 66 For a detailed explanation see Kai Ambos, ‘General Principles in the Rome Statute’, 10 Criminal Law Forum (1999) 1-32 at 28. One notable difference is the fact that participation in an offence generally requires that the main perpetrator must have acted in a non-justied manner. The main perpetrator may, however, nd himself excused for his actions and therefore not punishable: Tröndle and Fischer, Strafgesetzbuch, supra note 4, before Section 25, marginal note 9. 67 Neuner, ‘General Principles’, supra note 13, at 116. 68 Pursuant to Section 35, CC, the accused may already be excused if it can be shown that his or her ‘physical integrity’ was threatened. 69 To implement Article 33, RS, a special regulation was necessary, since ‘excuse’ under the general provision of Section 17, CC, is bound to stricter conditions (see infra note 74). 70 With its Section 3, the CCIL follows the example of the Rome Statute but leaves it to the courts to decide when an order is manifestly unlawful. According to the Grundsatz der freien Beweiswürdigung (principle of free consideration of evidence) by virtue of Section 261, Strafprozessordnung (German Code of Criminal Procedure, hereinafter also ‘CCP’), 1 February 1877, Reichsgesetzblatt at 253, none of the parties bears the burden of proof. It is likely that the judges in their case-by-case assessment will follow the example of Article 33(2), RS, pursuant to which an order to commit genocide or crimes against humanity is obviously always unlawful. 71 Tröndle and Fischer, Strafgesetzbuch, supra note 4, Section 15, marginal notes 9 et seq. 72 With the narrow exception of superior orders, see supra note 69 and accompanying text. 73 The constitutionally manifested principle of guilt does not allow for the implementation of Article 32(2), RS. 74 Section 17, CC, requires the accused to actively ensure the lawfulness of his or her act, see Tröndle

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does not appear to render Germany ‘unable genuinely to carry out investigations or prosecutions’.75 Since the Code of Crimes against International Law entered into force exactly one day prior to the entry into force of the Rome Statute, there are no potential problems of retrospectivity. Germany is not a party to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968).76 According to Section 5 of the CCIL, however, no statutory limitation applies for the three core crimes. Hence, a defence in this regard cannot be invoked by an accused in a German court. At the same time, the less serious offences of Section 13 and 14 of the CCIL are not subject to this rule.77

4. Preconditions for the Exercise of Jurisdiction The principle ne bis in idem is found in the German constitution78 but is generally limited to renewed proceedings by the same state (even if the proceedings in another state were based on the universality principle).79 The new Cooperation Act80 deals in detail with the ‘upward’ perspective of ne bis in idem concerning the effects of judgments of German courts on proceedings before the ICC.81 For the ‘downward’ perspective no special provision has been made. However, one might come to satisfying results by means of a völkerrechtskonforme Auslegung (interpretation with a view to complying with public international law)82 of the constitutional principle.

and Fischer, Strafgesetzbuch, supra note 4, Section 17, marginal notes 7 et seq. 75 Article 17(1)(a), RS. Cf. Neuner, ‘General Principles’, supra note 13, at 121. 76 New York, 26 November 1968, in force 11 November 1970, 754 United Nations Treaty Series 73. 77 In this case, the general statute limitations of Section 78(3), CC, apply, prescribing these crimes within 5 years. 78 Article 103(3), GG. As a result, a previous conviction bars the indictment on grounds of the same facts (Strafklageverbrauch). The German notion of idem (prozessualer Tatbegriff – see Section 264, CCP) is very similar to the rather broad approach of Article 20(1), RS. 79 Tröndle and Fischer, Strafgesetzbuch, supra note 4, Section 51, marginal note 16. However, a sentence served previously abroad for the same crime has an impact on the sentence in Germany, Section 51(3), CC. 80 Sections 3, 4, 28, 63, Cooperation Act, contained in Article 1, Implementation Act, supra note 2. 81 See Christine van den Wyngaert and Tom Ongena, ‘Ne Bis in Idem Principle, Including the Issue of Amnesty’, in Antonio Cassese et al. (eds.), The Rome Statute of the International Criminal Code: A Commentary (Oxford University Press: 2002), vol. 1, 705-29 at 724. On the German provisions see infra Section III.3.b; see further Jan MacLean, ‘Gesetzentwurf über die Zusammenarbeit mit dem Internationalen Strafgerichtshof ’, 35 Zeitschrift für Rechtspolitik (2002) 260-264 at 262. 82 See supra note 9. It remains to be seen whether the courts will extend the currently narrow reading of Article 103(3), GG, so as to include the ICC.

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The German constitution provides for the immunity of members of the Federal Parliament, the President,83 and the constitutions of the federal states (Länder) contain similar provisions for the members of their parliaments. In each case, the immunity is restricted to the duration of the person’s term of ofce and can be lifted by the respective parliaments at any time. All parliaments usually waive these immunities in advance for all offences except insults of a political character. However, the waivers only cover the initiation of proceedings and exclude most investigative measures such as searches, as well as arrest warrants, which require specic waivers.84

5. Offences against the Administration of Justice There is no specic implementation of offences against the administration of justice in the Code of Crimes against International Law. The provisions on false testimony of the Criminal Code currently protect national judicial authorities only and do not apply to international courts.85 However, a draft law86 is currently in the process of adoption according to which the provisions on false testimony will be extended to international tribunals. 87

6. Discretion of the Prosecution Generally, German prosecutors are under a legal obligation to prosecute and thus enjoy no discretion once certain facts corroborate the suspicion that a punishable offence has been committed (‘Legalitätsprinzip’ or ‘Anklagepicht’).88 The consequences of this principle combined with the principle of universal jurisdiction89 could conceivably 83

Articles 46(2) and 60(4), GG. Richtlinien für das Strafverfahren und das Bußgeldverfahren, 1 January 1977, Bundesanzeiger no. 245 of 21 December 1976, and subsequent modications, para. 192a. Text available in Lutz Meyer-Goßner, Strafprozessordnung (48th edn, Beck: Munich, 2005) 1889 et seq. 85 Section 153 et seq., CC. 86 Entwurf eines Gesetzes zur Umsetzung des Rahmenbeschlusses des Rates der Europäischen Union zur Bekämpfung der sexuellen Ausbeutung von Kindern und der Kinderpornographie, BT-Drs. 16/3439, 16 November 2006. 87 This will be done by including a reference in Section 162, CC, cf. supra note 86, Annex 1, Section 1, No.4. The draft of Section 162(1), CC, reads: ‘Die §§ 153 bis 161 sind auch auf falsche Angaben in einem Verfahren vor einem internationalen Gericht, das durch einen für die Bundesrepublik Deutschland verbindlichen Rechtsakt errichtet worden ist, anzuwenden.’ (‘Sections 153 to 161 CC are also to be applied to false testimony before of an international tribunal which is constituted by an act of law constituting a binding commitment on the Federal Republic of Germany’, translation by the authors.) 88 Sections 152(2) and 160(1), CCP. Prosecutors may exercise a certain degree of discretion in a limited number of cases, though, cf. Sections 153 et seq., CCP. 89 See supra notes 13–17 and accompanying text. 84

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paralyze the German judicial system.90 When introducing the new Code of Crimes against International Law, therefore, the legislators provided for a carefully balanced procedure by adding a new section to the Code of Criminal Procedure,91 allowing prosecuting authorities to exercise discretion92 and abstain from prosecution if (and only if) ‘the suspect is not present in Germany and such presence cannot be expected’.93 This rule, however, does not apply to suspected persons who are German nationals.94 The Code of Criminal Procedure attempts to ‘guide’ the prosecutorial discretion by specifying two cases in which the prosecution may ‘in particular’ abstain from further prosecutions: (1) No Germans are among the suspects or victims of the crime, the suspect is not present in Germany and such presence cannot be expected, and the crime is prosecuted by an international court or a state with territorial, active or passive personal jurisdiction over it; (2) The suspect is a foreign national presently in Germany, but no Germans are among the victims, and the surrender to an international court or another state with jurisdiction over the case is legally possible and intended.95 The Federal Prosecutor General is the sole authority competent for prosecutions into crimes under the Code of Crimes against International Law.96 In general, a decision of the prosecuting authorities not to initiate proceedings can be challenged in court by the victims. This procedure, called Klageerzwingungsverfahren,97 offers the victim the opportunity to oblige the prosecution to le charges, and hence serves as a means to enforce the legal obligation to prosecute and to guarantee the principle of equality. A limited number of attempts were made to use the Klageerzwingungsverfahren against decisions of the Federal Prosecutor General in cases concerning international crimes. A few of these cases garnered much scholarly and public attention: Abu Ghraib, Almatov, and Falung Gong.98 90 Especially with regard to the three core crimes, investigations by the prosecuting authorities proved to be lengthy, complicated and a drain on prosecutorial resources. 91 See supra note 70. 92 The exercise of such discretion offers the chance to consider by analogy the ICJ’s majority opinion in the Arrest Warrant Case (DR Congo v. Belgium), Judgement (14 February 2002), which states in para. 59 that an ‘extension of [domestic] jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs [which] remain opposable before the courts of a foreign State’. 93 Section 153f(1), CCP, as introduced by Article 3(5), CCIL, supra note 3. 94 In such cases, the prosecutor may dispense with prosecuting the offence only when a court of a state on whose territory the act was committed, or the ICC itself, has taken over prosecution, cf. Section 153f(1), second sentence, CCP. 95 Section 153f(2), CCP. 96 Section 142a(1), Judicature Act. 97 Section 172, CCP. 98 For detailed information on the Abu Ghraib case, see Andreas Fischer-Lescano, ‘Introductory note

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After the Federal Prosecutor General had denied99 the request to open an investigation against former U.S. Secretary of Defence Donald Rumsfeld and other suspects for the torture of prisoners in Abu Ghraib Prison in Iraq, a group of complainants appealed the decision.100 The complainants claimed that the principle of subsidiarity, on which the Federal Prosecutor General had based its decision, did not nd a basis in international law, and that, furthermore, Article 129(2) of the Third Geneva Convention101 set forth the obligation to prosecute persons who have ordered or committed grave breaches thereof. In addition, the complainants suggested that the Court of Appeals submits the case to the Constitutional Court for a preliminary ruling on the Federal Prosecutor General’s decision concerning the interrelation between Section 1 of the CCIL (universal jurisdiction) and Section 153f Code of Criminal Procedure (prosecutorial discretion).102 The Court of Appeals dismissed the appeal. The Klageerzwingungsverfahren was held inadmissible since the prosecutor’s discretion had not been exercised inadequately or arbitrarily. Furthermore, the court found that the legislator had purposefully refused to establish a procedure of judicial review of the Federal Prosecutor’s decisions. Additionally, the court dismissed the complainants’ argument that the conditions of Section 153f of the Code of Criminal Procedure had not been met based on the fact that a domestic link did indeed exist (at least three of the suspects were present in Germany). The court argued in this respect that the accused were subject to unlimited US jurisdiction as long they were members of the US army and as long they were stationed at US military bases in Germany. to decision of the General Federal Prosecutor’, 45 International Legal Materials (2006) 115-126 at 116. For detailed information on all three cases, see Wolfgang Kaleck, ‘German International Criminal Law in Practice: From Leipzig to Karlsruhe’, in Wolfgang Kaleck et al. (eds.), International Prosecution of Human Rights Crimes (Springer: Berlin, 2007) 93-112. 99 The General Prosecutor based his decision on the principles of subsidiarity and non-intervention according to which, under Section 153f, CCP, the German authorities may not initiate investigations if the accused are to be prosecuted in their home country. 100 The complainants included the Center for Constitutional Rights (New York) and four Iraqi citizens, and were represented by Wolfgang Kaleck. The complaint was supported by an expert opinion by Michael Bothe and Andreas Fischer-Lescano. 101 Geneva Convention on the Treatment of Prisoners of War, 12 August 1949, in force 21 October 1950, 75 United Nations Treaty Series 135. In 1954, this convention was incorporated into German law: BGBl. 1954 II, at 781. 102 This suggestion was based on Article 100(1) and (2), Basic Law. This argument was dismissed by the decision of the Stuttgart Court of Appeals of 13 September 2005 (5 Ws 109/05), stating that Section 153f CCP was in conformity with the Basic Law (Article 100 (1) Basic Law), and that there was no dispute whether a rule of international law was an integral part of federal law or would give rise to rights and duties of individuals (Article 100(2) Basic Law). The decision is printed in Andreas Fischer-Lescano, ‘Introductory note to decision of the General Federal Prosecutor’, 45 International Legal Materials (2006) 115-126, at 119-126.

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In November 2003, a group of complainants also lodged complaints with the Federal Prosecutor General concerning crimes against members of Falun Gong. In a decision of 24 June 2005, the General Prosecutor refused to initiate investigations on the grounds that it could not be anticipated that one of the suspects would visit Germany in the near future, and that no comprehensive investigation could be carried out since the alleged crimes had occurred in China. Additionally, the prosecutor argued that the President of China, Jiang Zemin, enjoyed immunity under international law which is recognized in German law.103 Another case concerned Human Rights Watch and a group of Uzbek citizens, who lodged a complaint with the Federal Prosecutor General against the former Uzbek Minister of Interior, Zakir Almatov, and other (former) members of the Uzbek Parliament and military. The complaint concerned allegations of systematic torture and a massacre in Andijan on 13 May 2005. In spite of an EU travel ban against him, Zakir Almatov had obtained a visa by the German government for humanitarian reasons in order to receive medical treatment at a German hospital, which he visited in November 2005. He left the hospital unexpectedly and returned to Uzbekistan at an unknown time, allegedly before the complaint was lodged.104 In his decision rendered some months later, the Federal Prosecutor General refused to open investigations against Zakir Almatov on two grounds. First, a substantial part of the facts underlying the complaint had occurred before the Code of Crimes against International Law entered into force.105 The second argument was based on the fact that the crimes had occurred outside Germany’s territorial jurisdiction, that none of the affected persons had been a German citizen, that none of the accused was German, and that none of them was expected to reside in Germany in the near future.106 Under these circumstances, an investigation would have had to be initiated only if it had been likely to reveal important evidence. As this was not the case according to the Federal Prosecutor General, the complaint was dismissed.107 These three selected cases demonstrate how the Federal Prosecutor General uses the prosecutorial discretion under Section 153f of the Code of Criminal Procedure 103

Section 20(2), Gerichtsverfassungsgesetz (‘Judicature Act’) of 27 January 1877, Reichsgesetzblatt at 41. For critical analysis, see Kaleck, ‘German International Criminal Law’, supra note 98, at 106-108. 104 For the position of the government cf. Kleine Anfrage: Aufenthalt des usbekischen Innenministers in Deutschland (Minor Inquiry: Stay of the Usbek Minister of the Interior in Germany), BT-Drs. 16/1579, 18 May 2006. 105 See Section 2(1), CC; Article 103(2), GG. 106 Cf. Sections 153f (1), rst sentence, in conjunction with Section 153c(1) no. 1; 153f(2) no. 1; and 153f(2) no. 3, CCP. 107 Decision by the Federal Prosecutor General of 31 March 2006, available at <www.generalbundesanwalt. de/de/showpress.php?themenid=8&newsid=232> (last visited 20 June 2007).

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to justify his unwillingness or (political) inability to apply the Code of Crimes against International Law in certain cases. Therefore, the Code has been rather a symbolic than an effective piece of legislation so far.

III. Cooperation with the Court 1. The Duty to Cooperate in General The duty to cooperate with the ICC is set out in the Cooperation Act.108 The Act is part of a series of measures guaranteeing the full implementation of the Rome Statute.109 It aims at anchoring the duty to cooperate with the ICC in German law.110 In 2002, the German government treated the Act with particular urgency, wishing to complete all necessary preparations for the fullment of Germany’s obligations before the ICC started its work.111 The government decided to create a new, self-contained Cooperation Act rather than to modify the Act on International Assistance in Criminal Matters112 (‘International Assistance Act’).113 Nevertheless, large parts of the Cooperation Act are based on the International Assistance Act.114 The drafters of the Act also relied on their experience with the rules on cooperation with the ICTY and ICTR to create a new instrument for the German cooperation regime.115 As a result of the decision to create a new Act, the Cooperation Act now serves as a model to other countries for a legal framework on the implementation of the Rome Statute.116 In contrast to the In108

Cooperation Act, supra note 2. Those include the Implementation Act (supra note 2), the CCIL and a constitutional amendment, cf. infra note 217. 110 Peter Wilkitzki, ‘The German Law on Co-operation with the ICC’, 2 International Criminal Law Review (2002) 195-212, at 195-196. 111 Ibid., at 198. 112 Ibid. 113 Gesetz über die internationale Rechtshilfe in Strafsachen (Act on the International Legal Assistance in Criminal Matters, hereinafter ‘International Assistance Act’), 23 December 1982, BGBl. 1982 I, at 2071. 114 MacLean, ‘Gesetzentwurf ’, supra note 81, at 261. 115 Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 198. 116 Dr. Georg Witschel, Director General for Legal Affairs in the Federal Foreign Ofce, declared in his Statement on behalf of Germany at the Fifth Session of the Assembly of States Parties that Germany was prepared to assist further countries to accede to the Rome Statute. In this context, Witschel mentioned that the (German) Cooperation Act was already available in English, French, Spanish, Russian and Arabic. Furthermore, Wilkitzki states that the drafting of the Cooperation Act was also motivated by the hope that the Act could be ‘exported’ to other countries to adapt their national legislation to the provision of the Rome Statute. Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 198. 109

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ternational Assistance Act, the Cooperation Act clearly shows the signicant difference between horizontal and vertical cooperation and judicial assistance in Germany.117 The procedure for ICC requests to Germany is divided into two parts: The procedure for determining the admissibility of a request as well as its execution, and the procedure for judicial review.118 On the one hand this two step procedure is based on Article 19(4) of the Basic Law,119 which requires judicial review for persons affected by acts of public authority. On the other hand, it results from the necessity to include an instance into the procedure which is able to act and react appropriately in matters of complex political connectivity and political impact, which requests by the ICC are likely to become.120 The German authorities have no power to examine whether sufcient reasons have been given to believe that the person committed a crime under the Rome Statute; their competence is strictly limited to the review of the ICC request’s formal aspects. According to the Cooperation Act, the Federal Ministry of Justice, in consultation with the Foreign Ofce,121 decides on the admissibility of requests by the ICC for legal assistance and on the submission of such requests to the ICC.122 The federal government can transfer these competencies to the Länder.123 Requests will be executed by the Public Prosecutor or the police. Even normal citizens are authorized to provisionally arrest persons suspected of committing core crimes, though under limited circumstances.124 117

Wilkitzki, ibid., at 198. For a detailed overview concerning the vertical and horizontal cooperation of the Federal Republic of Germany see Wolfgang Schomburg, ‘Internationale vertragliche Rechtshilfe in Strafsachen’, Neue Juristische Wochenschrift (2003) 3262-3266 (part I) and 3392-3395 (part II). 118 This procedure was already established in Section 12 (Section 74) of the International Assistance Act. 119 Article 19(4), GG, states that: ‘Should any person’s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts. …’ 120 MacLean, ‘Gesetzentwurf ’, supra note 81, at 262. 121 If the ICC’s request is affecting subject matters for which another German Ministry is responsible, that Ministry has to be involved in the procedure. 122 Section 68, Cooperation Act. Herwig Roggemann, ‘Das Gesetz zur Ausführung des ICC-Statuts und das Völkerstrafgesetzbuch in Deutschland’ in Herwig Roggemann, Anita Kurtovi and Petar Novoselec (eds.), Rechtsfragen der Zusammenarbeit mit der Internationalen Strafgerichtsbarkeit — in Kroatien und Deutschland (Arbeitspapiere des Interuniversitären Zentrums für deutsches, kroatisches, europäisches Recht und Rechtsvergleichung: Split/Berlin, 2004) 32-44, at 39; and Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 209. 123 However, the acts listed in Subsection (2) of Section 68 Cooperation Act cannot be transferred to the Länder. See further Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 210. 124 Section 13(1)(2), Cooperation Act, in conjunction with Section 127(1), German Code of Criminal Procedure.

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The Courts of Appeals (Oberlandesgerichte) are competent for the judicial review of requests for arrest and surrender which fall within their territorial jurisdiction.125 In case a suspect remains at large and it is impossible to determine his or her whereabouts, the Cooperation Act stipulates the jurisdiction of the Berlin Court of Appeals.126 This will avoid costly procedural expenditure for determining the competent court.127 As regards requests for other forms of cooperation,128 the prosecutor in whose district the requested act of assistance is to be carried out is competent for executing the request once it has been approved by the federal government.129 The ICC is also entitled to hold sessions on German territory.130 Considering that the Courts of Appeals and prosecutors attached to them have jurisdiction over requests from the ICC, considering further that the Courts of Appeal are also the courts of rst instance for crimes under the Code of Crimes against International Law131 and that the Federal Prosecutor General has sole authority to prosecute crimes against international law,132 it could be said that the competencies in matters relating to international criminal law are concentrated with only few authorities.

2. Specic Forms of Cooperation The procedure for handling requests concerning forms of legal assistance stipulated in Article 93 of the Rome Statute is set out in Sections 47-63 (part 5) of the Cooperation Act. Section 47 emphasizes the duty to cooperate with the ICC in relation to such requests. ‘Other forms of legal assistance’ (sonstige Rechtshilfe) are dened as ’all support which is granted to the Court in its activities on the basis of the Rome Statute, irrespective of whether the assistance is to be provided by a court or an agency‘.133 This understanding of legal assistance covers a broader spectrum of acts of cooperation compared to the International Assistance Act. The Cooperation Act therefore provides for any request of the ICC and not just for specic, enumerated requests.134 125

Sections 7 and 8, Cooperation Act. Section 8(3), Cooperation Act. 127 The procedure on the determination of the regional competence of the International Assistance Act is very complex and costly, because Section 14(3) involves the Federal Court of Justice in the procedure. 128 Cf. Article 93, RS. 129 Section 49, Cooperation Act. 130 Section 61, Cooperation Act. 131 Article 96(5), GG, and Section 120(1)(8), Judicature Act. 132 Cf. supra Section II.6. 133 Section 47(2), Cooperation Act. 134 Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 206. 126

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Some of these ‘other forms of cooperation’ are specically dened in part 5 of the Cooperation Act. Regarding the exchange of documents, the Cooperation Act sets forth that information may only be transferred to the ICC insofar as it could be transferred to a German court.135 Provision is also made for ensuring data protection and the condentiality of information received by other states or international and supranational organizations. Additionally, information can even be transferred to the ICC without request (‘spontaneous legal assistance’).136 Spontaneous legal assistance also includes the arrest of persons137 and the conduct of seizures.138 The Cooperation Act further provides that, on the request of the ICC, an individual’s assets may be frozen by the German authorities in order to curb that person’s ability to escape justice.139 Moreover, the Cooperation Act extends German rules on the protection of witness and victims to persons allegedly injured by a criminal act subject to ICC jurisdiction or to witnesses in proceedings before the ICC.140 In order to facilitate the voluntary appearance of witnesses that are not in detention, the same means used for persons summoned by a German court may be used.141 Provision is also made for facilitating witness testimonies by persons that are held in detention in Germany or other states.142 Summonses may be served on accused persons under Section 57. On-site investigations by the ICC Prosecutor, as required by Article 99(4) of the Rome Statute, are governed by Section 62. This provision authorizes the ICC to carry out independent on-site investigations, witness interviews and other depositions on

135

Section 58, Cooperation Act. ’Spontaneous legal assistance‘ is not without precedence in international law. For example, it is regulated in Article 11 of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters of 8 November 2001, European Treaty Series No.182. Cf. Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 208. 137 Section 11(2), Cooperation Act. 138 Section 30(1), Cooperation Act. See Steffen Wirth, ‘International Criminal Law in Germany: Case Law and Legislation’, 22-23 April 2002, online publication of the Max Planck Institute for Foreign and International Criminal Law available from <www.iuscrim.mpg.de/forsch/online_pub.html> (visited 9 May 2007), at 16. 139 Section 52(4), Cooperation Act; cf. Article 93(1)(k), RS. 140 Section 56, Cooperation Act. 141 Section 53(1), Cooperation Act. Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 207, points out that the duties to give evidence contained in the RS, which are mainly based on a common law procedure, go further than the duties provided in the German criminal law procedure. For that reason, Section 53(2)(2) indicates that the testimony given at the Court cannot be used in front of a German court if the German law would have provided the person with the right to reject the testimony. 142 Sections 54 and 55, Cooperation Act. 136

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German territory. Furthermore, ICC staff is allowed to attend German proceedings.143 This right of attendance includes the right to ask questions, initiate measures and the right to take notes or use other forms of recording. There are three exceptions to the obligation of states parties to the Rome Statute to cooperate with the ICC. The rst exception concerns the right to deny requests for assistance which nd no explicit basis in the Rome Statute. German authorities can deny such requests only in case they violate German law.144 The second exception regards cases where the requested information would endanger national security.145 The Cooperation Act provides that the execution of a request should be deferred in such a case until it has been settled how to proceed with the request in conformity with the Rome Statute.146 The third exception concerns conicts with fundamental legal principles of general application.147 In this regard, Section 58(1) of the Cooperation Acts claries that the cooperation of German courts with the ICC with respect to the provision of ofcially obtained information is limited only insofar as the information would be admissible before a German court.148 Section 48 of the Cooperation Act, which also applies to the latter exception, seems to imply a duty for German authorities to enter into consultations with the ICC on ways to overcome such difculties.149

3. Arrest and Surrender 3.a. Implementation of the Duty to Arrest and Surrender Persons The surrender of persons to the International Criminal Court requires a decision of a national court in order to satisfy the constitutional right to a legal remedy.150 The procedure set out in the Cooperation Act151 follows the procedure that applies to regular cases of extradition to other states.152 However, national courts are not allowed to refuse the surrender on grounds that are admissible in regular cases of extradition to 143

Section 60, Cooperation Act. Article 93(1)(l), RS. 145 Article 93(3), RS. 146 Section 48, Cooperation Act. 147 Article 93(4), RS. 148 Wirth, ‘International Criminal Law’, supra note 138, at 13. 149 Note that the provisions of Articles 93(3) and 72(5) RS, which stipulate obligations to consult with the court, are directly applicable, cf. Section 1(1), Cooperation Act, see further Ofcial Comments, supra note 8, at 40. 150 See supra Section III.1. 151 Sections 6 and 20-23, Cooperation Act. 152 Claus Kreß, ‘Internationaler Strafgerichtshof ’, in Heinrich Grützner and Paul-Günter Pötz (eds.), Internationaler Rechtshilfeverkehr in Strafsachen (2nd edn, Decker: Heidelberg, 2003), vol. III, 426. 144

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other states,153 as the Rome Statute creates a duty to surrender. Therefore the German authorities can only consider whether the conditions of the Statute for surrender have been met.154 These conditions are as follows: the person must have been charged with a crime under the jurisdiction of the Court, formal requirements must be met including the provision of necessary documents,155 and the identity of the person before the national court must correspond with the person identied in the warrant.156 The German implementation legislation provides that documents provided by the court for the purpose of arrest and surrender need to identify the provisions of the Rome Statute and any other international law upon which the arrest and surrender is based.157 The duty to arrest and surrender does not raise constitutional concerns, as the procedure of the Statute and the Rules of Procedure and Evidence guarantee fair procedures under the rule of law. The duty of German authorities to consult with the Court according to Article 91(4) of the Rome Statute has not been set out explicitly in German implementation legislation. However, duties to inform the Court and to consult with the Court are not expressly repeated in the implementation legislation in every case, as the provisions of the Statute are directly applicable.158 The Ministry of Justice is the competent authority for such consultations.159 Provision is further made for arrest as well as provisional arrest preceding surrender.160 It is designed to full the duty of prompt arrest and surrender.161 Provisional arrest can be ordered in urgent cases if the Court issues a request for such. This requires less documentation than requests for regular arrest and surrender.162 Provisional arrest can also be ordered if the Court issues a request for regular arrest and surrender without, however, producing all the documents referred to in Article 153

Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 200, 201; MacLean, ‘Gesetzentwurf ’, supra note 81, at 263; Kreß, ‘Internationaler Strafgerichtshof ’, supra note 152, at 426; Jörg Meißner, ‘Das Gesetz zur Ausführung des Römischen Statuts‘, 7 Neue Justiz (2002) 347-350 at 348. 154 Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 200; Meißner, supra note 153, at 349. 155 Cf. Articles 91(2) and (3), RS. 156 Ofcial Comments, supra note 8, at 51; critical on the scope of this decision of German authorities see Jörg Meißner, ‘Die Zusammenarbeit Deutschlands mit dem Internationalen Strafgerichtshof, Anmerkungen zum Regierungsentwurf eines IStGH-Gesetzes’, 15 Humanitäres Völkerrecht (2002) 35-42 at 37-38. 157 Section 5(1) sentence 3, Cooperation Act. 158 Ofcial Comments, supra note 8, at 40. 159 Section 68(3), Cooperation Act. 160 Sections 10 and 11, Cooperation Act. 161 Article 59(1) and (7), RS. German authorities do not have discretion in this regard: once the conditions for arrest are met, they have the duty to order arrest. See MacLean, ‘Gesetzentwurf ’, supra note 81, at 262. 162 Section 11(1) Cooperation Act; Article 92, RS.

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91(2) and (3) of the Rome Statute.163 An arrested person must be brought before the competent judicial authority promptly.164 The judge must ascertain the identity of the person before him and compare it to the person named in the warrant.165 The rights of the accused, namely the right to counsel and the right to remain silent are to be respected in this procedure.166 The German implementation legislation establishes a procedure which is lacking in many other countries: an arrest for surrender can be ordered by German authorities even before a request of the Court for surrender is received. This is possible in case a person is strongly suspected of a crime justifying his or her surrender to the Court and if it is to be feared that the person will take ight or obfuscate evidence.167 Furthermore, accelerated surrender is also an option with the accused’s consent.168 If, after placing the person under provisional arrest, the state has not received a request for surrender within 60 days and the arrested person has not consented to the simplied procedure of surrender, the competent authority must release the arrested person.169 If a person has been released after 60 days have passed he or she can only be arrested on ground of a formal request pursuant to Article 91 of the Rome Statute.170 It is not possible to effect a second provisional arrest under Article 92 of the Statute as the time limit of Rule 188 RoPE could otherwise be circumvented. The arrested person has the right to apply for interim release.171 However, the competent German authorities may grant interim release only on the limited grounds in Article 59(4) of the Rome Statute; they do not have discretion in this regard.172 The limited grounds for interim release in Article 59(4) of the Statute do not apply if a person is arrested before a request of the Court for surrender is received,173 as the arrest is not mandated by the Statute, but is carried out only in anticipation of such a duty. German authorities are obliged to inform the Court if interim release has been requested. Recommendations of the Court have to be taken into account.174 The Ger163

Ofcial Comments, supra note 8, at 45. Section 14, Cooperation Act. 165 Section 14(3) no. 1, Cooperation Act; Article 59(2)(a), RS. 166 Section 14(2), Cooperation Act. 167 Section 11(2), Cooperation Act, see also Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 201-202; Meißner, ‘Die Zusammenarbeit Deutschlands’, supra note 156, at 39. 168 See Section 14(6), Cooperation Act. 169 Section 11(1) sentence 2, Cooperation Act; see Article 92(3), RS; Rule 188, RoPE. 170 See Article 92(4), RS; see also Section 14(4), Cooperation Act. 171 Section 14(5), Cooperation Act; see Article 60(2), RS. 172 Section 14(5) sentence 2 and Section 16(2) sentence 1, Cooperation Act. 173 Section 11(2), Cooperation Act. 174 Section 14(5) sentence 2 and Section 16(3), Cooperation Act.; cf. Article 59(5), RS. 164

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man implementation legislation provides for a second opportunity for the Court to make recommendations if the German authorities plan to deviate from the former recommendation of the Court, which goes further than the Rome Statute requires.175 The principle of proportionality, a constitutional requirement which is applicable to pre-trial detention, could potentially conict with the requirement under the Rome Statute of detention prior to a trial before the International Criminal Court. Nevertheless, taking into account the gravity of the crimes to be tried before the Court and the possibility for a person to be granted interim release in exceptional circumstances, it appears that pre-trial detention will usually be found to be proportional. Thus, there are no constitutional difculties with the implementation of the requirements of pretrial detention as a rule into German legislation.176 3.b. Multiple Proceedings against the Same Person The accused is granted the right to bring a challenge of ne bis in idem before a German national court.177 In the event of such a challenge, the Court of Appeals postpones the surrender procedure until the Court has ruled on the admissibility of the case.178 The duty to consult with the Court as laid down in Article 89(2) of the Rome Statute is directly binding for German authorities.179 Temporary surrender to the Court may be ordered if the arrested person has been convicted or a procedure is ongoing against him or her in Germany for crimes different to those under the Statute.180 With a view to the accelerating principle laid out in Article 59(7) of the Rome Statute, temporary surrender will presumably be used on an exceptional basis, e.g. if the convicted person is serving a sentence for a serious crime in Germany or is being prosecuted for a serious crime. For medium and minor crimes, national prosecutions may be terminated.181 In the event of competing requests for surrender by the Court and for extradition by another state, Article 90(1) of the Rome Statute obliges state parties to notify the Court of that fact. The Cooperation Act obliges German authorities to notify the Court if a request for extradition has been received by another state for crimes falling 175

Section 16(3) sentence 3, Cooperation Act. Cf. Ofcial Comments, supra note 8, at 45 and 53. 177 Section 3, Cooperation Act. Critical on the scope of this provision, which seems narrower than Article 20(1) and (3), RS, Meißner, ‘Die Zusammenarbeit Deutschlands’, supra note 156, at 38. 178 Section 3, Cooperation Act; compare Articles 95, 18 and 19, RS. 179 Ofcial Comments, supra note 156, at 40 and 94. 180 Section 27, Cooperation Act; see also Article 89(4), RS, and Rule 183, RoPE. 181 Cf. Section 154b(2) CCP; see also Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 210211; MacLean, ‘Gesetzentwurf ’, supra note 81, at 262-263; Meißner, ‘Das Gesetz zur Ausführung’, supra note 153, at 349. 176

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under the jurisdiction of the Court.182 It is thus not necessary for the Court to have made a competing request. The rationale behind this more extensive notication duty is to keep the Court informed about investigations into and prosecutions of crimes falling under the Court’s jurisdiction at national level. In addition, German authorities are under a duty to notify if the requested person is not sought for the same conduct by each of the competing requests.183 With regard to the decision as to whether to surrender to the Court or to extradite to the requesting state,184 the Cooperation Act states that Article 90(2), (4) and (7)(a) of the Rome Statute are applicable.185 In cases of competing requests of a state and the Court for extradition and surrender concerning the same criminal acts,186 the proceedings regarding the request of the state will be postponed until the proceedings before the Court have been brought to a close.187 In case of Article 90(5) of the Statute, the German implementation legislation sets a deadline of two months for the decision of the Court on admissibility.188 After this time, Germany can extradite the person to the requesting state if all other conditions for extradition are met.189 If Germany is under an international obligation to extradite the sought person to the requesting state,190 surrender of the person to the Court is given priority. Only in exceptional circumstances should persons be extradited to the requesting state.191 This is a deliberate decision of Germany to strengthen the Court.192 There is also a duty to inform the Court about all decisions on the competing request for extradition.193

182

Section 4(1), Cooperation Act. See Section 4(2), Cooperation Act. 184 Compare also Section 9a(2), International Assistance Act; Ofcial Comments, supra note 8, at 99100. 185 Section 4(3), Cooperation Act. 186 Article 90(2)-(6), RS. 187 Section 4(4), Cooperation Act. 188 Section 4(5), Cooperation Act. 189 For a critical view on whether this section is in line with the Rome Statute considering Article 86, RS, see Meißner, ‘Das Gesetz zur Ausführung’, supra note 153, at 38. 190 Article 90(6) and (7)(b), RS. 191 Section 4(6), Cooperation Act. 192 Ofcial Comments, supra note 8, at 43. 193 Section 4(7), Cooperation Act. 183

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3.c. Transit of Persons Being Surrendered through a State Party Sections 34 to 39 of the Cooperation Act regulate the transit of a person being surrendered to the Court through the territory of Germany.194 The person has to be held in custody during transit.195 This transit procedure fully respects the rule of law. In particular, detention must be ordered by a judge.196 Interim release may be granted during transit, if the transit of the arrested person cannot be conducted within two days.197 This regulation might be deemed problematic with a view to the duties that the transit should not impede or delay surrender198 and that the person in transit should be kept in custody.199 3.d. Duties to Inform the Court German authorities have to give the Court the opportunity to complete necessary documents for surrender,200 which corresponds to the duty to consult with the Court where insufcient information has been provided.201 The duty to inform the Court if a person is ready for surrender202 as well as further duties to consult with the Court set out in the Rome Statute203 are not explicitly mentioned in the German implementation legislation, as these provisions of the Statute are directly applicable.204 3.e. ‘Article 98(2)’ Agreements Germany has conrmed that it will not engage in new agreements under Article 98(2) of the Rome Statute so as not to undermine the spirit of the Statute. Nevertheless, the 1951 NATO Status of Forces Agreement (‘NATO SOFA’),205 to which Germany is a party, could arguably be regarded as such an agreement under Article 98(2) of the Statute.

194

Cf. Article 89(3), RS. Section 37(1), Cooperation Act; Article 89(3)(c), RS. 196 Section 37(2) Cooperation Act; see also Ofcial Comments, supra note 8, at 34. 197 Sections 37(5) and 14(5), Cooperation Act; cf. Ofcial Comments, supra note 8, at 64. 198 Article 89(3)(a), RS; see Kreß, ‘Internationaler Strafgerichtshof ’, supra note 152, at 429. 199 Article 89(3)(c), RS; see Meißner, ‘Die Zusammenarbeit Deutschlands’, supra note 156, at 39. 200 Section 20(2), Cooperation Act. 201 Article 97(a), RS. 202 Rule 184(1), RoPE. 203 Cf. Article 97(b) and (c), RS. 204 Supra Section I; see also Ofcial Comments, supra note 8, at 40, 56, 94 and 95 . 205 Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces of 4 April 1949, in force 19 June 1951, 199 United Nations Treaty Series 67. 195

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Though the sending state might have a privilege of jurisdiction,206 according to some legal scholars it is not clear why this privilege should impede the surrender to the Court if the sending state is not willing to make use of its privilege to exercise jurisdiction.207 A request for surrender to the Court only makes sense where a sending state is unwilling to exercise its jurisdiction with regard to the complementarity principle. Furthermore, some bilateral or multilateral extradition treaties to which Germany is a party could come under Article 98(2) of the Rome Statute, insofar as most of these treaties contain a clause prohibiting re-extradition. The purpose of such clauses is to prohibit the subsequent extradition or surrender of an arrested person after he or she has been received from a third state on condition of being returned upon the termination of the investigation, prosecution or execution of the sentence.208 3.f. Constitutional Issues: Immunities, Surrender of Nationals and Life Imprisonment The immunities granted under German law to certain ofcials209 are irrelevant for prosecutions by the Court, as requests by the Court for arrest and surrender take precedence over national law pursuant to Article 24(1) of the Basic Law and Article 27(2) of the Rome Statute.210 German national legislation contains rules which exempt diplomatic missions, staff of embassies and consulates, other state representatives on ofcial invitation in Germany as well as certain other persons from German national jurisdiction in accordance with international law.211 However, the implementing legislation renders these 206

Article VII(3)(a)(ii), NATO SOFA. Kreß, ‘Internationaler Strafgerichtshof ’, supra note 152, at 132, see especially the further references in footnote 341 on that page. 208 Prost and Schlunck, ‘Article 98’, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Nomos: Baden-Baden, 1999) at 1133; Jörg Meißner, Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Römischen Statut (Beck: Munich, 2003) 127-130. 209 See supra Section II.4. 210 See supra note 12 and accompanying text; see further Kreß, ‘Internationaler Strafgerichtshof ’, supra note 152, at 428; Meißner, ‘Das Gesetz zur Ausführung’, supra note 153, at 348. 211 Sections 18-20, Judicature Act. The scope of diplomatic and consular immunities is dened by the Vienna Conventions on Diplomatic and Consular Relations. Heads of state are considered exempt from prosecution in Germany under customary international law. For further details see Albin Eser and Helmut Kreicker (eds.), Nationale Strafverfolgung völkerrechtlicher Verbrechen, National Prosecution of International Crimes (Edition Iuscrim: Freiburg, 2004), vol. I – Germany, 355 and 360-366 (also on the question of immunity for international crimes). For the problematic question of immunities of members of the government and of immunity in the case of international crimes see ibid. at 352-359, in this regard also note Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), ICJ Reports (2002) 3 at para. 54, 58-61. For the question of the duration of the immunity of the mentioned persons in relation 207

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rules inapplicable in the event of surrender to the International Criminal Court.212 As this provision cannot affect existing obligations of Germany under international law, it implies that the German legislator is condent that the Court will examine for existing immunities before proceeding with requests for surrender, as stipulated in Article 98(1) of the Rome Statute.213 If the Court should nevertheless request Germany to surrender a person enjoying immunity, Germany would be obliged to respect the immunity.214 As far as nationals of state parties are concerned, the state parties have waived the immunities of their nationals under the Statute.215 Article 16(2) of the Basic Law used to stipulate that no German may be extradited to a foreign country. The prevailing opinion of legal scholars was that this provision did not prevent the surrender of Germans to international tribunals.216 However, the legislator disagreed with this reading of the provision217 and decided to amend it in 2000.218 It now stipulates that Germans may be extradited to Member States of the European Union or to an international tribunal provided that the rule of law is respected. The imposition by the ICC of life sentences, which are also known in German law,219 does not pose constitutional difculties. In particular, as the Rome Statute provides for the review of sentences for the purpose of their reduction,220 it corresponds to the requirement under German constitutional law that persons sentenced to life imprisonment need to have a legal prospect of being released one day.221

to their time in ofce see Eser and Kreicker (eds.), ibid., at 357-358. 212 Section 21, Judicature Act. 213 Kreß, ‘Internationaler Strafgerichtshof ’, supra note 152, at 428; and Eser and Kreicker (eds.), Nationale Strafverfolgung, supra note 211, at 363-364. Note that a distinction has to be made between nationals of state parties and non-state parties, see for further details Kreß, ibid., at 127-130. 214 Eser and Kreicker (eds.), Nationale Strafverfolgung, supra note 211, at 363-364. 215 Article 27(2), RS. See Meißner, ‘Die Zusammenarbeit Deutschlands’, supra note 156, at 36. 216 See for further details Wirth, ‘International Criminal Law’, supra note 138, at 15; MacLean, ‘Gesetzentwurf ’, supra note 81, at 262. Note also that former Art. 16(2) GG raised questions with respect to Germany’s international obligations to cooperate with the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. See Kreß, ‘Internationaler Strafgerichtshof ’, supra note 152, at 27; Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 196. 217 Ofcial Comments, supra note 8, at 29. 218 Gesetz zur Änderung des Grundgesetzes (Artikel 16) (Act to Amend the Basic Law (Article 16)), 29 November 2000, in force 2 December 2000, BGBl. 2000 I, at 1633. 219 Section 38(1), CC; cf. Sections 6(1), 7(1) No. 1 and 2, 7(3), 8(1) No. 1, (4), 11 (2), 12 (2), CCIL. 220 Article 110, RS. 221 Bundesverfassungsgericht, 1 BvL 14/76, Judgment of 21 June 1977, 45 BVerfGE 187.

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4. Enforcement of Sentences, Fines and Forfeitures Germany has so far accepted two detainees from the ICTY. The rst detainee received from the ICTY was Duško Tadi in October 2000.222 Dragoljub Kunarac was transferred to Germany as a detainee of the ICTY in December 2002.223 Germany has concluded an Enforcement of Sentences Agreement with the ICTY.224 No such agreement was concluded with the ICTR. Germany has indicated its general willingness to accept sentenced persons from the Court and is thus on the list of states mentioned in Article 103(1)(a) of the Rome Statute. According to information received by the German Ministry of Justice, Germany refrains from concluding a framework agreement with the registry of the Court on the acceptance of detainees from the Court on a general basis. Rather, judging from Germany’s practice with regard to ICTY detainees, it is likely that special agreements concerning the acceptance of individual detainees will be concluded.225 This will provide for a better tailoring of the terms of the agreement to the needs of the individual case. Moreover, as the enforcement of sentences falls into the competence of the Länder, it would be politically problematic to agree on a uniform framework agreement between the registry and Germany. The German rules on the execution of prison sentences in cooperation with the Court226 derive from Germany’s experience in cooperating with the ICTY and the ICTR.227 Considering the supervision of the Court over the enforcement of sentences,228 German implementation legislation regards the Court as the executing authority of the sentences.229 Except for some special issues, which would have to be stipulated in 222

See ICTY, Case Information Sheet on Tadi Case, <www.un.org/icty/glance/tadic.htm> (visited 7 May 2007). For further details on the cooperation between Germany and the ICTY see Peter Wilkitzki, ‘The Contribution of the Federal Republic of Germany and the German Länder to the Work of the ICTY’ in Vorah et al. (eds.), Man’s Inhumanity, supra note 26, at 930-931. 223 ICTY, Case Information Sheet on Kunarac, Kova and Vukovi case, <www.un.org/icty/glance/kunarac. htm> (visited 7 May 2007). 224 According to the ICTY Website, this agreement was concluded on 17 October 2000. See ICTY, Basic Legal Documents: Member States Cooperation: Agreements on the Enforcement of Sentences, <www. un.org/icty/legaldoc-e/index.htm> (visited 7 May 2007). 225 The information was received in March 2006. The conditions Germany may set up in such an agreement under which the enforcement of a sentence of imprisonment will be taken on should be used restrictively according to the Ofcial Comments, supra note 8, at 35 and 66. 226 Kreß, ‘Internationaler Strafgerichtshof ’, supra note 152, at 430. 227 Ofcial Comments, supra note 8, at 35-36 and 68. 228 Article 106, RS; Rule 211, RoPE. 229 For the scope of the term ‘supervision’ see Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 204-205.

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agreements between Germany and the ICC, the detention of ICC prisoners in German detention facilities will be regulated by German law. 230 The German implementation legislation also deals with the enforcement of orders for nes and forfeiture delivered by the Court,231 as well as the duty to cooperate in the enforcement of orders by the Court for reparations.232 It takes into account that the amount of damages or of reparations as determined by the Court must not be changed during the enforcement by German authorities.233

IV. Conclusion The German implementation legislation deliberately strengthens the Court’s mission. This aim is visible throughout both the CCIL and the Cooperation Act. In many regards, German implementation legislation constitutes duties that go even further than the obligations set out in the Rome Statute. However, it remains disappointing that the Federal Prosecutor General has not yet given (or could not give) more practical meaning to this legislation up until now.

230

Ofcial Comments, supra note 8, at 68; see also Kreß, ‘Internationaler Strafgerichtshof ’, supra note 152, at 430; MacLean, ‘Gesetzentwurf ’, supra note 81, at 263. 231 Sections 43 and 44, Cooperation Act; cf. Article 77(2)(a) and (b), RS. 232 Section 45, Cooperation Act. Such reparation orders are sanctions sui generis under the German system of sanctions, see Wilkitzki, ‘German Law on Co-operation’, supra note 110, at 205; MacLean, ‘Gesetzentwurf ’, supra note 81, at 263; Kreß, ‘Internationaler Strafgerichtshof ’, supra note 152‚ at 431. 233 See Rule 219, RoPE, see also Ofcial Comments, supra note 8, at 36; MacLean, ‘Gesetzentwurf ’, supra note 81, at 263.

Implementation of the Rome Statute in Italy Paola Sacchi* and Silvia Borelli**

I. Introduction Italy signed the Rome Statute of the International Criminal Court1 on 18 July 1998 and ratied it on 26 July 1999. The ratication of the Rome Statute was authorized, in accordance with Article 80 of the Italian Constitution,2 by a law of 12 July 1999.3 The law contains no implementing provisions, since many aspects of the Statute—some of which will be addressed hereunder—were felt to be constitutionally sensitive and their implementation would have meant unaffordable delays in the ratication process. Therefore it was decided at the time to postpone the elaboration and adoption of specic implementing legislation. Although some steps have been made in this direction, no implementing legislation has yet been enacted. In 2002, a draft proposal on implementation of the Rome Statute was submitted to the Italian Parliament by members of the then center-left opposition.4 This proposal, which *

Junior barrister, Milan; law degree, University of Milan; LL.M. (International Master on Cooperation Against Trans-National and International Crimes), Università degli Studi di Teramo, Italy. ** Ph.D., Università degli Studi, Milan; Research Fellow, University College London. Sections I, II and IV.1 are by Paola Sacchi; Sections III and IV.2 are by Silvia Borelli. Translations are by the authors, unless otherwise indicated. Thanks are due to Matthias Goldmann, Cornelia Schneider and Simon Olleson for their patience and helpful comments during the preparation of the present report for publication. 1 Rome Statute of the International Criminal Court, Rome, 17 July 1998, in force 1 July 2000, 2187 United Nations Treaty Series 90 (hereinafter also ‘RS’). 2 The Italian Constitution was approved by Deliberation of the Constituent Assembly on 22 December 1947, Gazzetta Ufciale No. 298 of 27 December 1947, entered into force on 1 January 1948. Art. 80 of the Constitution: ‘The Chambers authorize by the passing of a law the ratication of international treaties which are of a political nature, or provide for arbitration or judicial settlement of disputes, or imply modications to the national territory, or impose burdens on the Treasury, or result in modication of the law’. 3 Law No. 232 of 12 July 1999, Gazzetta Ufciale No. 167 of 19 July 1999. 4 The proposal was submitted to the Chamber of Deputies on 9 May 2002 (Atto della Camera no. 2724, On. Kessler e altri (XIV legislatura), <www.camera.it/_dati/leg14/lavori/stampati/pdf/14PDL0028880.pdf>) and to the Senate on 24 July 2002 (Atto Senato no. 1638, Sen. Iovene e altri (XIV legislatura), <www.senato.

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is hereinafter referred to as ‘the Parliament Draft’ or ‘the Draft’, has not yet been discussed by the Parliament. Since 1998, several advisory bodies have been established with the aim of producing draft domestic legislation in order to adapt the domestic legal system to the requirements of the Rome Statute.5 On 27 June 2002, the so-called ‘Conforti Commission’ was set up within the Ministry of Justice and was divided into two sub-commissions, one of which dealt with the substantive issues and the other with the procedural aspects of the Rome Statute. Both sub-commissions submitted their work relating to draft legislation to the Ministry of Justice in 2003. As of the time of writing, the Ministry has not yet taken action on the proposals. The sub-commission on substantive crimes dealt only with genocide and crimes against humanity thus leaving to another advisory board established in 2002, the so-called ‘Scandurra Commission’, set up within the Ministry of Defence and working on the revision of the Military Criminal Code of War,6 the task of dening war crimes.7 The Commission within the Ministry of Justice is composed of a number of academics and experts, including practitioners, high-level public prosecutors and judges, and ministerial ofcers. Since the Italian ministerial commissions do not meet in public nor consult with civil society, the work done by the above mentioned commissions is not accessible. For this reason, the present study focuses exclusively on the Parliament Draft. The provisions of the Rome Statute need to be implemented in order to be binding in the Italian domestic legal order. This result follows from the rules on the it/japp/bgt/showdoc/frame.jsp?tipodoc=Ddlpres&leg=14&id=37567>) (both websites visited 31 August 2006). The Senate draft is different in minor respects compared to the draft introduced in the Chamber of Deputies. In particular there is one fewer article in Title IV, Chapter III, with a consequent difference in the articles following. All references to the Parliament Draft are to the article numbers in the draft introduced in the Chamber of Deputies. Any difference between the two drafts is noted as appropriate. No ofcial translation is available for the draft legislation. 5 The rst two commissions were the 1998 Pranzetti Commission set up by the Ministry of Foreign Affairs and the 1999 La Grega-Lattanzi Commission within the Ministry of Justice. See Roberto Bellelli, ‘Come adattare l’Ordinamento giuridico italiano allo Statuto della Corte dell’Aja’, 10 Diritto Penale e Processo (2003), 1299-1304. 6 Codici Penali Militari di Pace e di Guerra (The Military Criminal Codes of Peace and War, hereinafter also ‘MCCP’ and ‘MCCW’), Regio Decreto No. 303 of 20 February 1941, Gazzetta Ufciale No. 107 of 6 May 1941. 7 This information was made available at the ‘Seminar on Italian Implementing Legislation of the Rome Statute for the International Criminal Court’ organized by the NGO ‘Parliamentarians for Global Action’, 4 March 2004, Rome. Several senators who were members of the Human Rights Commission within the Parliament took part. Despite the fact that it was made clear at the seminar that the government proposal will be different in some aspects from the previous Parliamentary Draft, the latter is the only document which has been made public at present. Consequently, this report makes reference to the provisions thereof unless otherwise specied.

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reception of treaty law in the Italian legal system. While generally recognized principles of international law, i.e. norms of customary international law, automatically have effect within the Italian legal system,8 norms contained in international treaties are not immediately applicable within the domestic legal order, as they need to be incorporated through the adoption of an internal act. With respect to self-executing norms, the ordine di esecuzione, an Act of Parliament which generally accompanies the parliamentary authorization to ratify a treaty, is sufcient to achieve such incorporation. The law by which the Rome Statute was ratied contains such an ordine di esecuzione.9 However, where the treaty provisions are not self-executing — as in the case of most provisions of the Rome Statute —, the ordine di esecuzione, which merely reproduces the treaty provisions, does not render them immediately applicable. In such a case it is for the legislator to make the necessary amendments to the internal legal order; such amendments have the same normative rank as the Act which implements them: ordinary law or, potentially, constitutional law. The ratication Act of 12 July 1999, which contains the ordine di esecuzione, is an ordinary law. If adopted, the Parliament Draft will also have the rank of an ordinary law. In case of conict between the Italian Constitution and self-executing provisions of the Rome Statute or the Parliament Draft, according to the rules on hierarchy of norms in the Italian legal system, the Constitution would prevail.10 According to Article 138 of the Italian Constitution, only constitutional laws can amend other provisions which are constitutional in character through a special parliamentary procedure which requires a qualied majority of the members of Parliament. At the time of ratication, a number of issues relating to the compatibility of the Italian Constitution with the Rome Statute were raised in Parliament. The most complex is the incompatibility of constitutional provisions granting immunity to the principal state ofcials11 with Article 27 of the Rome Statute, which declares the irrelevance of any immunity. Other norms of the Rome Statute are also likely to create constitutional problems. These include the power of the ICC prosecutor to carry out investigations on the territory of states parties without having secured their cooperation (Article 54(2)(b) 8

Art. 10(1) of the Constitution: ‘The Italian legal order conforms to generally recognized norms of international law’. 9 See supra note 3. 10 Art. 1, Preleggi (provisions introductory to the Italian Civil Code, Regio Decreto No. 262 of 16 March 1942, Gazzetta Ufciale No. 79 of 4 April 1942), provides for the principle of hierarchy of norms according to which laws come rst, followed by regulations and usages. It is accepted by both case-law and academic writers that the Constitution is at the top of this hierarchy of sources of law. For references to Italian jurisprudence relating to supremacy of the Constitution in case of conict with ordinary laws implementing treaty provisions, see Benedetto Conforti, Diritto Internazionale (6th edn, Editoriale Scientica: Napoli, 2002) at 301-302. 11 Specically, Arts 68, 90, 96 and 122 of the Constitution.

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of the Rome Statute), which might encroach upon the due process rights enshrined in the Constitution.12 The duty to comply with requests for surrender (Article 89 of the Rome Statute) is at least potentially problematic in relation to constitutional provisions which prohibit the extradition of foreigners and nationals for political crimes.13 Finally, the provisional measures envisaged in Articles 59 and 60 of the Rome Statute also create problems in relation to the Constitution, which prohibits the displacement of a prosecution from the judicial forum established by the law.14 Many parliamentarians and scholars have suggested that the issue of constitutional incompatibilities could be resolved by characterizing the ICC system either as ‘a legal order that ensures peace and justice among Nations’ or as an international organization dedicated to such an end for the purposes of Article 11 of the Constitution, under which ‘Italy … consents, on condition of equality with other States, to the limitations on its sovereignty necessary for a legal order which ensures peace and justice among Nations; promotes and favours international organizations dedicated to that aim’.15 While this reasoning permitted a swift ratication of the Rome Statute and helped to avoid the need for a lengthy prior process of constitutional amendments, it inevitably left open the question of how the legislator should subsequently deal with the constitutionally sensitive issues inherent in the implementation of the Statute.

II. Complementarity 1. General Principles of Jurisdiction Criminal jurisdiction in Italy is based on four different principles: (a) the territorial principle; (b) the active nationality principle; (c) the passive personality principle and (d) the universality principle. As far as the territoriality principle is concerned, the Criminal 12

See Art. 111 of the Constitution. For a general overview on the compatibility of the Italian provisions on the due process of law with the provisions codied in the Rome Statute and other international instruments, see Amnesty International, ‘Law reform needed to implement the Rome Statute of the International Criminal Court’, 1 September 2005, AI Index EUR 30/009/2005, available in English and Italian at <web.amnesty.org/library/Index/ENGEUR300092005?open&of=ENG-385> (visited 15 September 2006) at 46-52. 13 Arts 10 and 26 of the Constitution. This issue is, however, addressed by Art. 4 of the Parliament Draft. 14 Art. 25(1) of the Constitution. Roberto Bellelli, ‘Come adattare L’Ordinamento Giuridico’, supra note 5 at 1300. 15 Translated by Paolo Benvenuti, ‘Italy, Implementation of the ICC Statute in National Legislation, Constitutional Aspects’ in Claus Kreß and Flavia Lattanzi (eds), The Rome Statute and Domestic Legal Orders (Nomos: Baden-Baden/Il Sirente: Ripa di Fagnano Alto, 2000), vol. I, 123–137 at 129.

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Code asserts Italy’s jurisdiction for crimes committed in the territory of the State. 16 This requires that a material element of the crime, being an action, an omission or an event ensuing from one of the two, takes place on Italian territory. The Criminal Code also embodies the active nationality principle by extending criminal jurisdiction over nationals committing a crime abroad in cases when the punishment foreseen for the crime is between three years and life imprisonment, and the wrongdoer is located in Italian territory.17 When the proscribed punishment is less than three years’ imprisonment, the exercise of criminal jurisdiction is subject to a request by the Minister of Justice or a complaint by the victim.18 Article 7 (‘Crimes committed abroad’), which lists particular kinds of crimes, Article 8 (‘Political crimes committed abroad’),19 and Article 10(1) (‘Common’ crimes committed abroad by foreigners’, which applies to all those crimes not listed in Article 7)20 implement jurisdiction on the basis of the passive personality principle (i.e. those situations where the State has an interest in the prosecution of crimes committed abroad). In this regard, criminal jurisdiction is asserted over both nationals and non-nationals. In the cases provided for by Articles 8 and 10(1), a request by the Minister of Justice or complaint by the victim is necessary. Last but not least, there is jurisdiction over non-political crimes committed abroad by foreigners against foreigners, against the European Community or against foreign states if the crime is one for which the penalty is not less than three years.21 Article 7(5) of the Criminal Code foresees the application of Italian law to a ‘crime for which special provisions of the [Italian] law or of international conventions stipulate the applicability of Italian criminal law’22 both to nationals and non-nationals who commit such crimes abroad. Thus, these provisions introduce the universality principle. As far as the reference to international treaties in this provision is concerned, an example of the applicability of universal jurisdiction will be in case of torture, once Italy has adopted legislation in relation to the 1984 Convention against 16 Art. 6(1) of the Codice Penale (The Criminal Code, hereinafter also ‘CC’), Regio Decreto No. 1398 of 19 October 1930, Gazzetta Ufciale No. 251 of 26 November 1930. 17 Art. 9 of the CC. 18 Art. 9(2) of the CC. 19 Note that ‘political crimes’ for these purposes are dened by Art. 8 (3) in the Constitution as being any crime which infringes a political interest of the State, or a political right of a citizen. Under the same provision, it is specied that a ‘common’ crime which has a political motives whether in whole or in part, is also to be considered as a political crime for these purposes. In relation to the denition of political crimes for the purposes of the prohibition of extradition under Arts 10(4) and 26(2) of the Constitution, see infra note 172 and accompanying text. 20 Arts 7-10 of the CC. 21 Art. 10(2) of the CC. 22 Art. 7 of the CC.

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Torture.23 Another provision embodying the universality principle is Article 3(2) of the Criminal Code stating the applicability of Italian criminal law to ‘every citizen or foreigner who is abroad when provided by Italian law or by international law.’. This norm is reinforced by Article 10(1) of the Constitution, according to which the Italian legal order conforms to the generally recognized norms of international law (i.e., customary international law). The Parliament Draft invokes the territorial and nationality principles for genocide, crimes against humanity, war crimes and other international crimes.24 The draft implements the universality principle by asserting domestic jurisdiction in relation to those crimes where the territoriality and nationality principles are inapplicable, and none of the states parties with jurisdiction pursuant to the territoriality or nationality principles, nor the ICC, have exercised their jurisdiction.25

2. Core Crimes Italy implemented the Convention on the Prevention and Punishment of the Crime of Genocide26 on 9 October 1967.27 Italian law does not dene genocide by means of a single article featuring a common chapeau but by a series of articles, each one containing, on the common ground of genocidal intent, one modality of the commission of genocide. As a general observation, the conception of genocide in domestic law is wider than that of the Convention insofar as an attempt to kill somebody is considered as a sufcient material element for the crime of genocide and the killing of a person constitutes an aggravating circumstance. Also, the element of inicting on a group conditions of life calculated to bring about its physical destruction in whole or in part, provided for in Italian law, is not required to be ‘intentional’, which leads to a lower threshold in comparison to the Convention.28 Besides the modalities contained in the Convention, domestic law lists ‘deportation’, ‘actions directed to the commission of genocide by means of removal of minors’ and the ‘imposition of marks or 23

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, in force 26 June 1987, 1465 United Nations Treaty Series 85; see also Tullio Padovani, Diritto Penale (7th edn, Giuffrè: Milan, 2004) at 54. 24 Arts 15(1) and (2), and Titles II, III, IV and V, of the Parliament Draft. 25 Art. 15(3) of the Parliament Draft. 26 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, in force 12 January 1951, 1021 United Nations Treaty Series 78. 27 Convention on the Prevention and Punishment of the Crime of Genocide, New York, ) December 1948, in force 12 January 1951, 78 United Nations Treaty Series 277; Law No. 962 of 9 October 1967, Gazzetta Ufciale No. 272 of 31 October 1967. 28 Ibid., Art. 1(2).

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symbols, forcing persons pertaining to a national, ethnical, racial or religious group to carry marks or signs indicating that they belong to the group’.29 In one respect Italian law is narrower than Article II of the Genocide Convention and Article 6 (b) of the Rome Statute, as it does not include the iniction of mental harm as a modality of commission.30 In its Title II, the Parliament Draft basically reproduces the existing domestic law provisions on genocide. Only the provision concerning genocide by the removal of minors has been changed and does not contain the age limit to minors of fourteen years which applied previously.31 In Italy, there is no legislation criminalizing crimes against humanity as codied in the Rome Statute. Most crimes against humanity would, however, be punishable as ordinary crimes.32 As regards international instruments imposing the obligation to criminalize conduct included in Article 7 of the Rome Statute, Italy ratied the 1984 Convention against Torture on 12 January 1989,33 but has not yet implemented it.34 There has been a lengthy debate both within and outside Parliament fostered by NGOs, most intensively by Amnesty International Italy, as to the necessity of properly implementing the Convention against Torture, which has not come to an end yet. A series of parliamentary and ministerial initiatives followed one another as a result of the above mentioned civil society lobbying activities, suggesting the introduction of a new article in the Criminal Code which provides a denition of torture in line with the Convention against Torture, covering the crime of torture as a war crime and crime against humanity. 29

Ibid., Art. 2, Art. 5 and Art. 6, respectively. Amnesty International report, ‘Law reform needed’, supra note 12, at 15. 31 Art. 27 of the Parliament Draft: ‘Anyone who, with the aim of destroying, in whole or in part, a national, ethnic, racial or religious group as such, removes minors belonging to a group, including by means of individual measures in the form of placing in foster care, howsoever called, in order to transfer them to another group, shall be punished by 12 to 21 years imprisonment’. 32 Murder (Art. 575, CC), rape and other forms of sexual violence (Art. 609bis et seq.), enslavement (Art. 600, 601 and 602, as amended by Law No. 228 of 11 August 2003), imprisonment or other severe deprivation of physical liberty (Art. 605, 606 and 607). 33 See also Law No. 498 of 3 November 1988, Gazzetta Ufciale No. 271 of 18 November 1988. 34 Italy is also party to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, in force 3 September 1953, ratication 26 October 1955, Council of Europe Treaty Series no. 5, and to the International Covenant on Civil and Political Rights, New York, 16 December 1966, in force 23 March 1976, ratication 15 December 1978, 999 United Nations Treaty Series 171, which also prohibit torture in all circumstances. However, at present, Italian legislation specically provides for the crime of torture only in Art. 185bis of the Military Criminal Code of War following the amendments introduced by Law No. 6 of 31 January 2002, Gazzetta Ufciale No. 28 of 2 February 2002 (concerning the participation of military forces in the international military operation ‘Enduring Freedom’), which is premised upon commission in the context of an armed conict. 30

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Italy has not yet ratied the 1973 Apartheid Convention,35 and therefore apartheid is not criminalized in Italian law. In the Parliament Draft, Title III contains a series of articles dedicated to ‘crimes against humanity’. The chapeau article that xes the conditions under which ‘crimes against humanity’ are identied, together with the list of crimes and their denition, reproduces almost verbatim the provisions of Article 7 of the Rome Statute.36 The punishment provided for is between a minimum of three years’ imprisonment (in the case of ‘imprisonment’ and ‘enforced disappearance of persons’37) and life imprisonment (in the case of ‘extermination’ when the death of one or more persons results from such a crime38). As far as war crimes are concerned, Italy ratied the 1949 Geneva Conventions by Law n. 1739 of 27 October 1951 and the two 1977 Additional Protocols by Law n. 762 of 11 December 198539. Nevertheless, it has not yet implemented its obligations under those treaties. In domestic legislation, war crimes are contained in the Military Code of War, in existence since 1 October 1941, and specically in its Title IV (‘About the laws and customs of war’). These provisions were meant to adapt domestic legislation to the 1899 Hague Convention II.40 A Commission was set up within the Ministry of Defence in order to produce draft legislation intended to fully implement the provisions of the 1949 Geneva Conventions and the 1977 Protocols and, in particular, to criminalize ‘grave breaches’. No law has yet been passed by Parliament, but the Military Criminal Code of War was amended on 31 January 2002, when provisions not consistent with international humanitarian law were repealed and acts that were not previously punishable by Italian legislation were criminalized.41 As mentioned above,42 at present there is a Commission within the Ministry of Defence endowed 35

International Convention on the Suppression and Punishment of the Crime of Apartheid, New York, 30 November 1973, in force 18 July 1976, 1015 United Nations Treaty Series 243. 36 Art. 29 of the Parliament Draft. 37 Arts 40 and 41 of the Parliament Draft, respectively. 38 Art. 31 of the Parliament Draft. 39 Geneva Conventions, Geneva, 12 August 1949, in force 21 October 1950, 75 United Nations Treaty Series 970-973; Law No. 1739 of 27 October 1951, Gazzetta Ufciale No. 53 of 1 March 1952; Protocols Additional to the Geneva Conventions of 12 August 1949, Geneva, 8 June 1977, in force 7 December 1978, 1125 United Nations Treaty Series 17512-17513; Law No. 762 of 11 December 1985, Gazzetta Ufciale No. 303 of 27 December 1985. 40 Convention with respect to the Laws and Customs of War on Land, Hague, 29 July 1899, in force 4 September 1900, 1 Bevans 247. 41 Law No. 6 of 31 January 2002, supra note 34. For a detailed comparison of the provisions concerning war crimes contained at present in Italian legislation and those contained in the Geneva Conventions and the Rome Statute, see Amnesty International report, ‘Law reform needed’, supra note 12, at 18-27. 42 See supra note 7 and accompanying text.

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not only with the general task of revising the Military Code of War but now also with specically framing ‘war crimes’ according to the provisions of Article 8 of the Rome Statute in order to introduce them in the proposal drafted by the Commission within the Ministry of Justice mentioned above. The Parliament Draft addresses war crimes in Title IV. There is a chapeau article providing for jurisdiction over such crimes when committed in the context of, or in relation to, an armed conict, which must be either of an international character, that is, involving different states or national entities, irrespective of a formal declaration of war or a protracted internal conict between governmental and organized armed groups or between such groups.43 Jurisdiction over war crimes does not arise from situations of internal disturbances and tensions, such as riots or isolated, non systematic acts of violence. There follows a body of norms substantially covering all the crimes listed in Article 8 of the Rome Statute. Criminal responsibility is imposed upon ‘anyone’ who commits such crimes, that is to say regardless of the wrongdoer’s nationality.

3. General Principles of Criminal Law Command responsibility is addressed in the Criminal Code as well as in the Military Criminal Code of Peace and the Military Criminal Code of War.44 According to the Criminal Code, ‘[w]hen an act constituting a crime is committed pursuant to an order of an authority, criminal responsibility always falls on the ofcer who gave the order’.45 The two Military Criminal Codes establish the criminal responsibility of military commanders for a very restricted category of crimes committed in their presence, in particular ‘crimes against loyalty and military defence’, ‘rebellion’ and ‘mutiny’, and frame their criminal responsibility in terms of undue omission.46 In fact, the Military Codes recall the general provision of Article 40 (2) of the Criminal Code, according to which failing to prevent an event which a person is under a legal duty to prevent is equivalent to causing it.47 Therefore, the military commander’s presence at the scene of the crime being necessary in order to establish an undue omission, the two codes imply that criminal responsibility requires full knowledge. 43

Art. 43 of the Parliament Draft. See supra note 6. 45 Art. 51(2) of the CC. 46 Note that the Criminal Code does not dene the ‘Authority’ mentioned in Art. 51. But, it is almost universally agreed that that provision addresses the wide sphere of Public Authority, while the Military Codes provisions apply only to military personnel. 47 Art. 40(2) of the CC; Art. 138 of the MCCP, and Art. 230 of the MCCW. 44

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The Parliament Draft contains two provisions addressing command responsibility. The rst imposes a duty to ensure the protection and respect of human values, and to protect groups, persons, goods and interests protected by the Draft upon anyone in a position of authority (even de facto authority), command or control over civilians or military personnel.48 The second addresses the criminal responsibility of anyone who, being in such a position or being otherwise in a position of supremacy over others, fails to take all measures necessary in order to prevent a crime from being committed.49 Notwithstanding the fact that the draft provision in question recalls the stipulations of the Criminal Code and the Military Codes,50 no explicit reference is made to the presence of the commander as an element of the undue omission, nor does the article address the issue of the commander’s knowledge. According to the Criminal Code, ‘[w]hen more than one person contributes to the commission of a crime, each person is subject to the punishment established by law for that crime, unless otherwise provided in the following articles’.51 In this regard, the majority of the doctrine and jurisprudence agrees in recognizing as participation every act which at least facilitates the commission of the crime either psychologically or physically.52 Moreover, having planned or organized the cooperation in the crime or directed the activities of persons involved in the commission, or having induced someone to commit the crime by use of position of authority, command or control, are reasons for aggravating the punishment.53 Making an agreement to commit a crime and incitement to commit a crime are not liable for punishment when the crime is not committed,54 and thus recognizes a contrario that those two forms of participation are punishable when the crime is actually committed. The only article of the Parliament Draft recalling the provisions of the Rome Statute concerning participation provides for the incitement to, and justication of, core crimes as forms of punishable behaviour.55 For the full implementation of the crimes under the Rome Statute, it is of relevance that the defences provided for in Italian law do not overly reduce criminal liability. The Parliament Draft is largely silent on the issue of defences: it simply extends the applicability of mitigating circumstances provided for by the legislation concerning

48

Art. 2 of the Parliament Draft. Art. 11 of the Parliament Draft. 50 See supra note 47. 51 Art. 110 of the CC. 52 Cf. Padovani, Diritto Penale, supra note 23, at 371. 53 Art. 112(1) of the CC, points 2 and 3. 54 Art. 115 of the CC. 55 Art. 9 of the Parliament Draft. 49

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the crime of terrorism56 to the core crimes.57 The Criminal Code distinguishes between grounds of justication and grounds for the exclusion of personal guilt or the exclusion of responsibility.58 The rst category includes actions or omissions whose unlawfulness is prevented by particular circumstances. A different category of particular circumstances is not considered by the law as preventing the unlawfulness of certain actions or omissions, but sufces for a person not to be held criminally liable.. The defence of ‘mental disease’ (Article 31(a) of the Rome Statute) nds its equivalent in Article 88 of the CC which provides that the total incapacity of a person to have intent or knowledge of facts constitutes a ground for the exclusion of responsibility. Article 89 of the CC provides for situations in which mental disease does not exclude the capacity of knowing and intending but limits such capacity; in such situations, it is considered a ground for diminishing punishment without excluding personal guilt. Intoxication is dealt with in the same terms as in the Rome Statute; the Criminal Code frames it as a ground for the exclusion of personal guilt in Article 95, unless the person became intoxicated voluntarily. In this case, Article 92, referring to drunkenness, and Article 93, referring to drug intoxication, uphold the person’s criminal responsibility. Article 52 CC provides for self-defence. In order to be considered a ground for justication, the act has to be determined to be taken out of necessity to defend oneself or someone else from an imminent danger or an unlawful use of force, and the act has to be proportionate to the degree of danger. Article 54(1) CC is very similar to the provision of Article 31(d) of the Rome Statute in that it provides for a ground of justication of the act when the crime arises from the necessity to ‘save oneself or others from an imminent danger of grave personal harm, provided that the defendant did not voluntarily cause that danger and the danger was not otherwise avoidable, and that the act is proportionate to the danger.’ Article 54(3) provides for the application of Article 54(1) to the hypothesis in which the person is forced to commit a crime as a result of a threat by another person; in this case, the person chargeable for the act committed is the author of the threat. When a threat amounts to duress to commit a crime (Article 46 of the CC), and the person subject to it could not resist or escape, criminal responsibility for the committed act falls on the author of the duress.

56

Decreto Legge No. 625 of 15 December 1979, Gazzetta Ufciale No. 342 of 17 December 1979; Law No. 15 of 6 February 1980, Gazzetta Ufciale No. 37 of 7 February 1980; Law No. 304 of 29 May 1982, Gazzetta Ufciale No. 149 of 2 June 1982. 57 Art. 14 of the Parliament Draft. 58 The general rule concerning the exclusion of personal guilt or exclusion of responsibility in Art. 85 CC states: ‘Nobody shall be held criminally responsible for a crime if at the time it was committed he/she was not liable. A person is liable when he/she has the capacity to have intent and knowledge.’

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Domestic legislation provides for other defences that are not enunciated in the Rome Statute. Nevertheless, given the very special nature of the core crimes, it is hard to imagine how these defences could ever be found applicable.59 ‘Superior orders’ are addressed both in the Criminal Code and in military law. According to the Criminal Code, when a crime is committed by an order of the authorities, apart from the responsibility of the commander,60 criminal responsibility falls also on the person executing the order, save where the person thought, due to a mistake of fact, that he or she was obeying a lawful order.61 Nonetheless, even if he or she knew the order was unlawful, the person’s criminal responsibility may be excluded if the law did not grant the person ‘the authority to consider the lawfulness of the order’.62 As a consequence, the Criminal Code does not adequately reect Article 33 of the Rome Statute. Following an amendment to the Military Criminal Code of Peace,63 responsibility for the execution of superior orders is now provided for by a Decree of the President of the Republic of 18 July 1986.64 The provision therein, applicable to the military, is closer to Article 33 of the Rome Statute in that it requires a member of the armed forces who believes that an order is contrary to the law in force to bring his or her opinion to the attention of the superior giving the order.65 If the order is conrmed, he or she must execute it. However, when the order is manifestly unlawful, either because it is directed against the institutions of the state or because it manifestly amounts to the commission of a crime, the person is under a duty not to execute the order and inform other superiors about the situation.66 The Parliament Draft does not contain additional provisions relating to the mental element. The Criminal Code provides for three different levels of mental element. The rst is what in Italian is referred to as dolo, which is similar to Article 30(2) of the 59

In the category of justications fall the following defences: Art. 50 (consent of the person in possession of the right) and Art. 53 (legal use of weapons). Other grounds for the exclusion of personal guilt not mentioned so far are: Art. 45, according to which anyone who commits a crime because of a fortuitous or uncontrollable event is not responsible; Art. 86 (causing of incapacity in people in order to make them commit a crime); Art. 91 (drunkenness caused by a fortuitous or uncontrollable event), and Art. 96 (deaf-mutism). 60 Supra notes 45–48 and accompanying text. 61 Art. 51(3) of the CC. 62 Art. 51(4) of the CC. 63 Art. 40 of MCCP. 64 Decree of the President of the Republic No. 545 of 18 July 1986, Gazzetta Ufciale No. 214 of 15 September 1986. 65 Ibid., Art. 25(2). 66 Ibid.

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Rome Statute in that the action or the omission has to be perpetrated with intent and knowledge in order to amount to such level of mental element.67 The second level provided for by criminal law (colpa) refers to circumstances in which the crime has been committed because of negligence, imprudence, inexperience or non-observance of laws, regulations, orders or disciplines.68 The same provision applies to the last level of the mental element provided for by the Criminal Code: the mental element of preterintenzionalità. This is a category in between the two aforementioned levels and it envisages cases in which the crime was committed with intent and knowledge, but where the outcome is graver than the one expected by the wrongdoer.69 As far as mistakes are concerned, a mistake of fact is always a ground for excluding the mental element of dolo.70 Nonetheless, the person might be criminally liable for a crime requiring only colpa as a mental element. Also, a mistake of fact with regard to a certain crime does not exclude criminal responsibility for a different crime.71 Last but not least, a mistake of law other than criminal law is a ground for excluding criminal responsibility only when it caused a mistake of fact, i.e. a ‘mistake of law on the fact’.72 The Criminal Code states that ‘[i]gnorance of criminal law is not a ground for excluding criminal responsibility’.73 In 1998, the Constitutional Court declared this provision unconstitutional for not considering ‘inevitable ignorance’ as a ground for excluding criminal responsibility.74 It should be pointed out that this category of mistake of law is extremely narrow and relates to: (a) an impediment to the correct knowledge of law, caused by absolute obscurity of the text due to an inconsistent information policy by public institutions; and (b) a situation in which every person would have been a victim of the same mistake.75 67

Art. 43 (1)of the CC: ‘A crime is doloso, or intentionally committed, if the harmful or dangerous event is the consequence of the action or the omission from which the law derives the existence of the crime, and if such event was by the wrongdoer planned and wanted as a consequence of his action or omission.’ 68 Art. 43(1) of the CC. 69 Art. 43 (1)of the CC. 70 Art. 47(1) of the CC. 71 Art. 47(1) and (2) of the CC: ‘Mistake in relation to the act constituting the crime is a ground for excluding criminal responsibility. Nonetheless, when mistake is caused by colpa, criminal responsibility is not excluded when the act is qualied by law as a colposo crime. Mistake as to whether an act constitutes a particular crime does not exclude criminal responsibility for a different crime’. 72 Art. 47 (3) of the CC: ‘Mistake of law other than in relation to the criminal law is a ground for excluding criminal responsibility when it caused a mistake of fact in relation to the act constituting a crime’. 73 Art. 5 of the CC. 74 Judgment No. 364 of 23-24 March 1988, 111 Foro italiano (1988), Parte Prima, 1385-1412. 75 Cf. Padovani, Diritto Penale, supra note 23, at 228.

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As a general rule, the Constitution states that ‘[n]obody can be held liable for punishment when the crime was not provided for by law which had entered into force before its commission’.76 Given that domestic legislation at present does not cover some of the crimes under the jurisdiction of the ICC, it is likely that domestic courts will read this general provision of the Constitution as a constitutional impediment to the prosecution of crimes committed prior to its adoption even once the implementing legislation has been adopted. In fact, despite the fact that Italy has ratied both the 1950 European Convention on Human Rights77 and the 1966 International Covenant on Civil and Political Rights,78 which provide for an exception to the principle of non-retroactivity of crimes—insofar as that principle shall not ‘prejudice the trial and punishment of any person for any act or omission, which at the time it was committed, was criminal according to the general principles of law recognized by civilized Nations’ (in the words of the European Convention) or constituted a crime contrary to ‘the general principles of law recognized by the Community of Nations’ (in the words of the International Covenant)—and despite the fact that the crimes under the jurisdiction of the ICC may well be subsumed under those provisions, the superior rank of the Constitution requires a constitutional amendment in order for those provisions to be applicable. In this regard, the prosecutions of several former Nazi leaders in Italy by military courts, starting immediately after the end of the Second World War, until most recently the case of Erich Priebke in 1996,79 are examples of the applicability of the non-retroactivity principle; although the crimes these people had committed could have been characterized as war crimes, crimes against humanity and genocide, the accused were all charged according to then existing norms of domestic legislation, provided for either by the Italian Military Codes or the Criminal Code. Finally, it should be mentioned that Italy is a party to neither the 1968 Statutory Limitations Convention nor the 1974 European Statutory Limitations Convention.80 76

Art. 25(2) of the Constitution. The same provision is contained in Art. 2 of the CC. Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, in force 3 September 1953, Council of Europe Treaty Series No. 5; ratied by Law No. 848 of 4 August 1955, Gazzetta Ufciale No. 221 of 24 September 1955. 78 International Covenant on Civil and Political Rights, New York, 16 December 1966, in force 23 March 1976, 999 United Nations Treaty Series 171; ratied by Law No. 881 of 25 October 1977, Gazzetta Ufciale No. 333 of 7 December 1977. 79 Erich Priebke was charged with massacring 320 persons in Rome on 24 March 1944, commonly known as the Fosse Ardeatine massacre. 80 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, New York, 26 November 1968, in force 11 November 1970, 754 United Nations Treaty Series 73; European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes, Strasbourg, 25 January 1974, in force 27 June 2003, Council of Europe Treaty Series No. 82. 77

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Nonetheless, the Parliament Draft states that no limitation period is applicable to crimes under the jurisdiction of the ICC.81

4. Ne Bis In Idem The Code of Criminal Procedure provides that ‘[t]he defendant, convicted or acquitted by an irrevocable sentence or decree, cannot be subjected again to criminal proceedings for the same fact, even if it is differently framed so far as the qualication, the graveness or circumstances of the crime are concerned’.82 Pursuant to the Criminal Code,83 the ne bis in idem principle does not apply (a) when the crime was committed in Italy, either by a foreigner or a national, and the person was subjected to prosecution in another state; (b) when the crime was committed abroad, either by a foreigner or a national, in one of the specic circumstances listed;84 (c) to the commission of a political crime abroad, either by a foreigner or a national;85 (d) when the crime was committed by a national abroad;86 and e) when the crime was committed by a foreigner abroad but against the State or against an Italian national.87 In case (a), both nationals and foreigners are subject to prosecution in Italy regardless of whether they have already been prosecuted abroad.88 In cases (b) to (e), a new prosecution in Italy is subject to a request by the Minister of Justice. Nonetheless, the courts have held89 that those provisions do not apply to decisions of international tribunals by virtue of the Constitution.90 The Parliament Draft reproduces the provision of Article 20(2) of the Rome Statute, in that it states the applicability of the ne bis in idem principle and that no second prosecution may take place in Italy when the person has been convicted or 81

Art. 7(1) of the Parliament Draft. Art. 649 of Codice di Procedura Penale (The Code of Criminal Procedure, hereinafter also CCP), was adopted by Decree of the President of the Republic No. 447 of 22 September 1988, Gazzetta Ufciale No. 250 of 24 October 1988. 83 Art. 11 of the CC. 84 See Art. 7 of the CC. 85 Art. 8 of the CC. 86 Art. 9 of the CC. 87 Art. 10 of the CC. 88 Art. 11 of the CC. 89 Cf. Corte di Cassazione (Italian Supreme Court), sentenza n. 3659 of 19 April 1985, available at <www. tutticodici.it/CODICE%20PENALE%201-240%20C.html#_Toc436195731>; and Corte Costituzionale (Constitutional Court), sentenza n. 48 of 12 April 1967, available at <www.giurcost.org/decisioni/1967/ 0048s-67.html> (both visited 31 August 2006). 90 In particular, Art. 10(1) of the Constitution. See supra note 7 and accompanying text. 82

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acquitted before the ICC.91 However, the Parliament Draft nowhere mentions the provision contained in Article 20(3) of the Rome Statute concerning the power of the ICC to try persons who have been shielded from criminal jurisdiction by the Italian Courts or who were not tried independently or impartially or in a manner ‘which was inconsistent with an intent to bring the person concerned to justice’.

5. Offences against the Administration of Justice The Parliament Draft provides for amendments to and the insertion of new articles into the Criminal Code relating to crimes against the administration of justice, in order to allow Italy to comply fully with Article 70 (4) of the Rome Statute.92 Draft Article 8(1) and (2) states that Article 322 bis of the Criminal Code93 will be amended in that it will provide explicitly for ‘instigation to corruption’ of ICC ofcials. According to Article 8(3) of the Draft a new Article 343 bis will be inserted. It will extend the applicability of the most relevant criminal provisions for the protection of the administration of justice in the Criminal Code to cases in which the crime is committed against ‘the ICC, the judges, prosecutor, prosecutors, ofcers and agents of the ICC, any agent of the States Parties to the Rome Statute exercising functions corresponding to those of ofcers or agents of the ICC, or of the members or agents of entities constituted in accordance with the Rome Statute’.94 Articles 8 (4)-(10) and (11) of the Parliament Draft amend respectively Article 368 (defamation), Article 371 bis (false information to the prosecutor), Article 372 (false testimony), Article 374 (judicial fraud), Article 374 bis (false declarations or statements in judicial acts), Article 377 (bribery of persons called to give testimony, expert witnesses appointed by the court or translators, in order to induce them to commit crimes provided for in Articles 371 bis, 372 and 373 (false expert’s report),95 Article 378 (aiding and abetting someone who committed a crime to escape investigations),96 and Article 380 (unfaithful defence), in order to make the provisions contained therein applicable to the ICC. 91

Art. 20 of the Parliament Draft. Art. 8 of the Parliament Draft. 93 Art. 322 bis of the CC (‘Embezzlement, bribery, instigation to corruption of Members of the European Organs and of Ofcers of the European Community and Foreign States’). 94 The provisions of the Criminal Code which Draft Article 8 (3) makes reference to are: Art. 336 ‘Violence or intimidation against a public offcial’; Art. 337 ‘Resistence to a public offcial’; Art. 338 ‘Violence or intimidation against a political, administrative or judicial body’; Art 339 ‘Aggravating circumstances’; Art. 340 ‘Interruption of a public service or service of public necessity’; Art. 342 ‘Outrage on a political, administrative or judicial body’; Art. 343 ‘Outrage on a magistrate during a hearing’. 95 Art. 377 of the CC . 96 Art. 378 of the CC . 92

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6. Discretion of the Prosecution According to Article 112 of the Constitution, the prosecutor is under a legal duty to initiate criminal prosecution. The Criminal Code provides for three different categories of crimes: crimes the prosecution and investigation of which is subject to a complaint by the victim; crimes prosecuted and investigated by the prosecutor prorio motu; and crimes that are investigated and prosecuted upon a request by the Minister of Justice. Basically, this distinction corresponds to the evaluation made by the legislature as to the gravity of the crimes. The gravity is proportional to the importance of the protected value as far as the rst two categories are concerned, while for the third category other considerations require the necessity of a request by the Minister of Justice. The general rule is that crimes are investigated prorio motu.97 The Constitution states that the Prime Minister and state ministers are subject to ordinary criminal jurisdiction for crimes committed in the exercise of their functions; however the prior authorization of the Senate or the Chamber of Deputies in accordance with the relevant constitutional law is necessary.98 The Criminal Code requires the consent of the Minister of Justice for the commencement of an investigation if: (a) the crime has been committed by an Italian national abroad, the punishment for the crime is less than three years imprisonment and the person is in Italy; 99 (b) the crime has been committed by a foreigner abroad and the offender is in Italy; 100 (c) the crime, being one the prosecution of which is usually subject to complaint by the victim, has been committed against the President of the Republic;101 (d) the crime is one ‘against the international personality of the State’102 or ‘against the internal personality of the State’.103

97

Art. 50(2) of the CCP. Art. 96 of the Constitution; see also infra note 151 and accompanying text. 99 Art. 7 of the CC; see also supra note 22 and accompanying text. 100 Art. 10 of the CC; see also supra note 20 and accompanying text. 101 Art. 127 of the CC. 102 Chapter I, Title I (‘Dei delitti contro la personalità internazionale dello Stato’). 103 Article 313, Chapter II, Title I (‘Dei delitti contro la personalità interna dello Stato’). 98

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III. Cooperation with the Court 1. Implementation of the Duty to Cooperate in General Italy currently has no legislation in place enabling domestic authorities to cooperate effectively with the ICC. As stated above, although the law authorizing ratication of the Rome Statute contains an ordine di esecuzione providing that the Statute is to have full effect in Italian territory, it does not contain any provision aimed at modifying the existing legislation in such a way as to enable the competent domestic authorities to respond effectively to requests for cooperation by the ICC. 104 The existing rules on inter-state cooperation in criminal matters are contained in Book XI of the Code of Criminal Procedure, concerning ‘Relations with foreign judicial authorities’ (Rapporti giurisdizionali con autorità straniere). In accordance with the principle of legality, and given the manner in which the provisions are drafted,105 the various procedures for inter-state cooperation detailed in Book XI CCP cannot simply be applied by the domestic authorities, mutatis mutandis, to analogous instances of cooperation with the ICC. Further, certain forms of cooperation foreseen by the Rome Statute have no equivalent in the existing rules on inter-state cooperation.106 In the case of the International Criminal Tribunal for Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), Italy chose to implement the obligations of cooperation contained in the relevant Security Council resolutions107 through the adoption of ad hoc legislation, occasionally making use of existing procedures under the Code of Criminal Procedure and otherwise specically creating new procedures to be used.108 As regards implementation of the obligation to cooperate with the ICC, the appropriate course would appear to be similar: the adoption of a new piece of legislation creating specic procedures (even if grafted onto existing 104

See supra notes 8–10 and accompanying text. In particular the fact that the rules refer exclusively to cooperation with the judicial authorities of other states: see, e.g., in relation to extradition, Art. 679 CCP. 106 For instance, although the existing rules on cooperation allow for various forms of investigative steps by Italian authorities on behalf of foreign authorities (see Arts 723-726 ter of the CCP), there is no provision allowing foreign authorities to carry out their own investigations on Italian territory, in a manner analogous to the powers of the ICC Prosecutor to do so foreseen under Article 99(4) of the RS. 107 See SC Res. 827, 25 May 1993; SC Res. 955, 8 November 1994. 108 Cf. Law No. 120 of 14 February 1994, Gazzetta Ufciale No. 43 of 22 February 1994 (on cooperation with the ICTY); Law No. 207 of 7 June 1999, Gazzetta Ufciale No. 151 of 30 June 1999 (on enforcement of judgments of the ICTY); Law No. 181 of 2 August 2002, Gazzetta Ufciale No. 190 of 14 August 2002 (on cooperation with the ICTR); Law No. 64 of 6 February 2006, Gazzetta Ufciale No. 53 of 4 March 2006 (ratifying and implementing the Agreement of 17 March 2004 concerning enforcement of judgments of the ICTR in Italy). 105

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procedures in domestic law), rather than expanding the scope of application of the provisions already contained in the Code of Criminal Procedure. The Parliament Draft contains a general provision on cooperation, which states that Italy will cooperate with the ICC in conformity with … the norms of general international law, of the Statute and of the present law, and, where required by the Statute, of international conventions in force for Italy.109 In addition, the Draft contains a number of rules which create specic procedures aimed at permitting effective cooperation with the ICC, as well as a general clause which provides that matters not expressly dealt with are regulated by the existing rules on inter-state cooperation in criminal matters.110 The Parliament Draft designates the Minister of Justice as the person entitled to submit documents or requests to the Court and to receive all requests for cooperation from the Court.111 Upon receipt of a request for cooperation from the ICC, the Minister forwards the request to the prosecutor attached to the Court of Appeal competent for the area where the acts requested by the ICC are to be performed.112 Where the request concerns the taking of evidence or investigations under Article 93 of the Rome Statute, the prosecutor attached to the Court of Appeal shall in turn transmit the request to the district prosecutor with territorial competence.113 As regards requests for arrest and surrender under Article 89 (1) and requests for provisional arrest under Article 92 of the Rome Statute, the request is sent to the prosecutor attached to the Court of Appeal for the area where the accused/convicted individual is found,who then makes an application for enforcement of the warrant to the Court of Appeal.114 The Parliament Draft further designates the Minister of Justice as the authority competent to decide on competing requests for cooperation, and provides that the Minister is to determine the precedence of requests in conformity with Articles 90 and 93 (9) of the Statute.115 Italy did not designate a channel of communication under Article 87 (1)(a) of the Rome Statute upon ratication of the Rome Statute, and has not done so subsequently. However, on 28 April 2004 it declared that it would prefer to receive requests through diplomatic channels and that the requests and relevant documents should be sent in Italian, together with a French translation.116 109

Art. 86(1) of the Parliament Draft. Art. 116 of the Parliament Draft, referring to Book XI of the CCP. 111 Art. 86 (2) of the Parliament Draft. 112 Art. 91 of the Parliament Draft. 113 Art. 92 of the Parliament Draft. 114 Art. 94 of the Parliament Draft. 115 Art. 88 of the Parliament Draft. 116 See the information on ratications and declarations, available at <www.un.org/law/icc> (visited 15 September 2006). 110

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Italy signed the Agreement on the Privileges and Immunities of the ICC117 on 10 September 2002, but at present has not ratied it. The Parliament Draft makes no provision regarding privileges and immunities of the ICC as such or of its key ofcials. No express provision has so far been made in relation to recognition of the legal personality of the ICC, nor does the Parliament Draft provide for such recognition. Although such recognition would obviously be desirable, it is not anticipated that a lack thereof in the Draft will create any danger that requests for cooperation by the Court will be refused, given that the draft implementing legislation expressly provides for cooperation with the ICC. Further, it is clear that the ICC will be able to sit on Italian territory; Article 90(1) of the Parliament Draft provides that the Minister of Justice shall agree with the ICC the modalities allowing the Court to hold sittings on Italian territory pursuant to Article 4 of the Rome Statute.

2. Specic Forms of Cooperation The Parliament Draft contains several provisions aimed at enabling the Italian police and judicial authorities to cooperate with the ICC with respect to each of the matters listed in Article 93 (1) of the Rome Statute. With regard to most of the procedures for the taking of evidence and questioning of witnesses listed in that provision of the Statute, the Draft refers back to the Code of Criminal Procedure, providing that the ordinary criminal procedures apply, subject to any necessary modications in order to comply with express requests of the ICC as to form, and so long as such modications are not incompatible with the fundamental principles of the Italian legal system).118 The competent court for the district has the same powers to secure the attendance of witnesses as it would have for ordinary domestic proceedings, including taking evidence on oath. Furthermore, under Article 92(3) of the Parliament Draft, the judges and the prosecutor of the ICC are permitted to be present during the execution of any of the cooperation procedures and may make suggestions as to the modalities of their execution.119 The Parliament Draft does not specify what information should be provided by the ICC to accompany a request under Article 93 of the Rome Statute; the information specied in Article 96 (2) (a–d) and (f) of the Rome Statute will hopefully 117

Agreement on the Privileges and Immunities of the International Criminal Court, New York, 9 September 2002, in force 22 July 2004, 2271 United Nations Treaty Series 3. 118 Art. 92(2) of the Parliament Draft. Examination of grave sites will be carried out in accordance with Article 244 of the CCP, which provides that ‘inspections of persons, places and things are ordered by the competent judicial authority’, and in accordance with the procedures relating to ‘extraordinary exhumations pursuant to an order of the judicial authority’ (see Regolamento di polizia mortuaria, Decree (DPR) No. 285, 10 September 1990). 119 Art. 92(3) of the Parliament Draft.

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in most cases be sufcient to allow the competent judicial authority to comply with a request from the ICC. As regards the service and provision of records and documents, including judicial documents (Article 93 (1) (d) and (i) of the Rome Statute), the Parliament Draft provides that requests from the ICC shall be transmitted to the district prosecutor attached to the court territorially competent for the place where the documents must be served or provided, who must proceed ‘without delay’.120 The Parliament Draft provides that, where it is necessary that an accused or a witness be transferred to Italian territory in order for the Italian judicial authorities to comply with a request for cooperation received from the ICC, that individual shall benet from temporary immunity.121 In particular, he or she cannot be subjected to restrictions on personal liberty in execution of a sentence or other restrictions of personal liberty imposed for acts which took place before he or she entered Italian territory. Such immunity ceases if, after 15 days from the moment in which his or her presence is no longer required by the judicial authority, the individual is still within Italian territory or if, after leaving, he or she voluntarily returns. With regard to Article 93 (1)(j) of the Rome Statute, the Parliament Draft provides that the Minister of Justice must give effect to any request by the ICC relating to the protection of victims and witnesses (and their relatives) under Article 68 of the Statute, by transmitting it to the Minister of the Interior (who has the necessary competence to implement the request).122 The Parliament Draft extends the relevant rules of existing domestic legislation concerning protection of, and assistance to, victims and witnesses and their relatives, to individuals in relationt to whom the ICC has requested protection.123 As concerns consultations with the Court, the Parliament Draft provides that the Minister of Justice is the authority competent to inform the ICC of any difculties in the execution of a request for cooperation.124 Although this provision only provides for a duty to inform the ICC, it is arguably intended to give effect to the duty of consultation set forth in Article 91(4) of the Rome Statute, by identifying the authority competent to consult with the Court. However, as already noted, Law No. 232 of 12 July 1999 has given ‘full effect’ in the Italian legal system to the Rome Statute; accordingly, those provisions of the Statute which are self-executing, which arguably include the general duty to consult with the ICC, create obligations on Italian authorities as a 120

Art. 92(4) of the Parliament Draft. Art. 93 of the Parliament Draft. 122 Art. 114 (1) of the Parliament Draft. 123 Art. 114 (2) of the Parliament Draft. 124 Art. 89 of the Parliament Draft. 121

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matter of domestic law, and there is therefore no need to adopt implementing legislation in that regard. Provision is expressly made for consultations in relation to applications for revocation or suspension of provisional measures. The Chamber of Deputies Draft requires the relevant Court of Appeal to promptly notify the Minister of Justice who will then consult with the ICC and transmit the opinion of the ICC to the Court of Appeal.125 The draft implementing legislation does not specify what weight the Court of Appeal should then give to the opinion of the ICC, but one may conjecture that Article 59 (5) of the Rome Statute, requiring the authorities of the state party to give full consideration to the recommendations of the ICC, is a self-executing provision, and is thus directly binding on the Italian judicial authorities. The Parliament Draft does not contain a provision expressly allowing the Prosecutor to conduct on-site investigations in Italy in accordance with Article 99(4) of the Rome Statute. However, the Parliament Draft authorizes the Minister of Justice to enter into ‘appropriate agreements’ with the ICC in order to allow the performance of investigations in Italy in accordance with Article 99 of the Statute.126 This authorization reects an intention to enable on-site investigations as far as possible. The Parliament Draft does not expressly enable the Italian authorities to deny a request for cooperation with the ICC pursuant to Article 93 of the Rome Statute. However, the existing rules on international cooperation and mutual legal assistance in criminal matters, referred to by the Parliament Draft, allow the Minister of Justice to deny the execution of a request for cooperation from a foreign judicial authority where he considers that the performance of the requested activity would compromise Italian sovereignty, national security or other essential interests of the State.127 If these broadly formulated rules were to be applied in order to refuse compliance with a request for cooperation with the ICC, this would not be compatible with Article 93 (3) and (4) of the Rome Statute.

3. Arrest and Surrender Apart from the procedural obstacles deriving, as noted above, from the fact that the existing rules on cooperation are not adequate to permit effective cooperation with 125

Art. 98 of the Chamber of Deputies Draft; cf. Art. 97 of the Senate Draft, which does not explicitly require transmission of the ICC’s views to the Court of Appeal. 126 Article 90(2) of the Parliament Draft. 127 See Article 116 of the Parliament Draft and Art. 723 (1) of the CCP. Other limits to cooperation are established in Art. 723 (2), aiming in particular at safeguarding the individual involved against discriminatory proceedings in the requesting State. However, they do not seem to pose any problems with regard to cooperation with the ICC.

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the ICC,128 there do not appear to be any substantive grounds in Italian law for refusal of surrender to the ICC. The existing rules on extradition require the Minister of Justice to deny the execution of a request for surrender where (a) the crime for which extradition is requested is a ‘political crime’; or (b) there are reasons to believe that the extraditee will be discriminated against in the requesting country; or (c) there are reasons to believe that he or she will be subjected to cruel, inhuman or degrading treatment or punishment, or to other violations of his or her fundamental rights in the requesting country.129 While these limits would appear to be applicable to requests for surrender from the ICC under the current draft implementing legislation, they do not seem to pose any particular obstacle to the surrender of individuals to the Court in practice. As discussed below, no obstacle is likely to arise from the prohibition of surrender of individuals accused of political crimes.130 The other two grounds for refusal, clearly aimed at potential abuse in the requesting State, are similarly unlikely to cause an obstacle in relation to a request by the ICC. The Parliament Draft provides that the Court of Appeal, which is competent to authorize a surrender to the ICC, can refuse to give effect to the request for arrest and surrender only where no warrant has been issued by the ICC or where the court is not satised that the person before it is the person named in the warrant.131 In all other cases, the Court of Appeal will issue a judgment conrming that there are no reasons why the request for arrest and surrender should not be executed.132 The Court of Appeal must rule upon the matter without delay.133 The judgment of the Court of Appeal may be appealed to the Court of Cassation, and the ling of an appeal suspends execution of the judgment. Upon the expiry of the time limit for presentation of an appeal, or if the appeal is rejected, the judgement of the Court of Appeal becomes nal and the Court of Appeal then issues an order for surrender to the ICC in accordance with the modalities for surrender specied by the Minister of Justice.134 Pending a decision of the Court of Appeal or the Court of Cassation, precautionary measures restrictive of liberty may be applied in relation to individuals the subject of a request. Upon receipt of a request for arrest and surrender, the prosecutor attached 128

See text accompanying note 104 supra. Cf. Art. 698(1) of the CCP. On the constitutional limits to extradition of nationals and non nationals, see text accompanying notes 159-163 infra. 130 On the concept of ‘political crimes’ for these purposes, see text accompanying note 161 infra. 131 Art. 94(3) of the Parliament Draft. 132 Ibid. 133 Art. 94(2) of the Parliament Draft. The proceedings take the form provided for by Art. 127 of the CCP (a form of abbreviated proceedings). 134 Art. 94(4) of the Parliament Draft. 129

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to the Court of Appeal must request that the court make an order for the person in question to be held in custody.135 The President of the Court of Appeal must verify the identity of a person taken into custody pursuant to a precautionary order within ve days.136 If the individual consents to surrender to the ICC, this must be recorded and the Minister of Justice informed.137 Custody is revoked if the Court of Appeal refuses execution of the request from the ICC.138 Where a request for provisional arrest is received in accordance with Articles 58(5) and 92 of the Statute, the Court of Appeal may order that the accused be taken into custody, provided that two conditions are met. 139 First, the ICC must have formally communicated to the Minister of Justice that an arrest warrant has been issued and that a request for surrender will be transmitted. Second, the ICC must have provided a statement of the crimes for which the person’s arrest is sought and of the facts which are alleged to constitute those crimes, as well as information describing the individualsought sufcient to identify the person who must be taken into custody. The procedure relating to custody in performance of a request for surrender described above applies also to provisional arrest pending transmission of a request for surrender.140 In accordance with Rule 188 of the Rules of Procedure and Evidence and Article 91 of the Rome Statute, the Parliament Draft provides that the order for custody will be revoked if, within 60 days from the Minister of Justice’s communication of the execution of the precautionary measure to the ICC, no request for surrender has been transmitted.141 In urgent cases, a person subject to a request for provisional arrest may be detained by the judicial police prior to an order of the Court of Appeal being made, provided that the requirements described above are met. As soon as possible, and in any case, within 48 hours, the detainee must be brought before the President of the Court of Appeal, who may order the release of the detainee or order that he or she be held in custody.142

135

Article 95 of the Parliament Draft. Under the Chamber of Deputies draft, where required by ‘serious health reasons’ detention in prison may be replaced by other measures (see Art. 95 (3)); however, no equivalent is included in the corresponding provision (Article 94) of the Senate Draft. 136 Art. 95(2) of the Parliament Draft. 137 Ibid. 138 Art. 95(4) of the Parliament Draft. 139 Art. 96 of the Parliament Draft. 140 Art. 96(2) of the Parliament Draft. 141 Art. 96(3) of the Parliament Draft. 142 Art. 97 of the Parliament Draft. The Minister of Justice must also be immediately informed of the arrest.

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Under the existing rules of criminal procedure, the arrested person has the right to apply for interim release.143 Under the Parliament Draft, provision is expressly made for consultation with the ICC in respect of an application for revocation or suspension of custody. In that case, Article 98 of the Draft requires the Court of Appeal to promptly notify the Minister of Justice who will then consult with the ICC and transmit the opinion of the ICC to the Court of Appeal.144 There is no provision in the Parliament Draft allowing the arrested person to bring a challenge before national courts to suspend the surrender process on the basis of the principle of ne bis in idem. However, where the execution of a request for cooperation might prejudice an investigation or proceedings on foot against an individual in Italy, the competent judicial authority must suspend execution of the acts requested, and inform the Minister of Justice.145 The Minister will in turn inform the ICC and take the necessary steps in accordance with Article 94 of the Statute to postpone the surrender.146 The Parliament Draft allows the Minister to suspend the process of surrender where the person in question is due to face trial in Italy, and is serving or is due to serve a sentence for offences committed after or before the crime for which surrender is sought by the ICC.147 No duty of consultation with the ICC is expressly provided for by the Draft in this case. As regards transit through Italian territory of a person to be surrendered to the ICC, transferred to another state for the execution of the sentence imposed by the ICC or extradited to a third state pursuant to a request of the ICC, the rules concerning the transit of persons extradited from one state to another apply.148 In such cases, transit is authorized by the Minister of Justice. The limitations upon granting an authorization for transit contained in the existing legislation — i.e. where the proceedings abroad concern conduct that does not constitute a crime under Italian law, where the person concerned might face the death penalty abroad, or where the person is an Italian national and extradition to the receiving state would normally not be granted149 — do not seem to pose any particular problem with respect to the transit en route to the ICC 143

Art. 299 of the CCP. On the issue of the relevance of the recommendation of the ICC to the decision of the Corte d’Appello see supra text accompanying note 125. 145 Article 115(1) of the Parliament Draft. As the Parliament Draft is silent on the matter, it seems that the provisions of Art. 115 apply both in the case of proceedings relating to the same facts which are the object of the proceeding before the ICC and of proceedings relating to other facts. 146 Art. 115(2) of the Parliament Draft. 147 Art. 94(5) of the Parliament Draft; Art. 709 of the CCP. 148 Art. 99 of the Parliament Draft; cf. Article 89 (3) of the RS. 149 Art. 712 of the CCP. 144

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of individuals convicted or accused by the ICC. Should the person concerned not consent to transit through Italian territory, the Minister of Justice can only authorize the transit upon obtaining a favourable decision of the Court of Appeal. As with every case concerning cooperation with ‘foreign judicial authorities’, the Rome Court of Appeal is the competent court. Under the Parliament Draft, the person will be held in custody during transit, in accordance with normal procedures.150 Italy has not entered into any agreements under Article 98(2) of the Rome Statute with other states subsequent to its accession to the Rome Statute that would prevent Italy from surrendering a person to the ICC. With respect to immunities of state ofcials in the Italian legal system, certain constitutional stipulations are relevant. The Constitution provides that the President of the Republic is not responsible for acts carried out in the exercise of his functions, except for acts of high treason or an ‘attack on the Constitution’, and that the Prime Minister and the Ministers are subject to normal criminal jurisdiction in relation to crimes committed in the exercise of their functions, but may only be prosecuted following authorization by the Senate or the Chamber of Deputies.151 Members of Parliament cannot be called to account for the opinions expressed in the course of their functions.152 Furthermore, they cannot be subjected to searches of their person or home, or be arrested or otherwise deprived of their personal liberty without the authorization of the Chamber of Parliament to which they belong (except in the execution of a nal conviction, or where they are caught committing a crime for which arrest is obligatory where the culprit is in agrante delicto).153 Similarly, members of Regional Councils cannot be held responsible for the opinions expressed and votes cast in the exercise of their functions.154

150 Art. 99 of the Parliament Draft; see also Art. 712 of the CCP, referring to Section II, Book XI (Arts 714-719) of the CCP; cf. Art. 89(3)(c) of the RS. 151 Arts 90 and 96 of the Constitution, respectively; see also Art. 5 of Constitutional Law No. 1 of 16 January 1989, Gazzetta Ufciale No. 13 of 17 January 1989 (on rules realting to proceedings for crimes committed by ministers), and Law No. 219 of 5 June 1989, Gazzetta Ufciale No. 130 of 6 June 1989 (on rules relating to crimes committed by ministers and the criminal responsibility of the President). 152 Art. 68 of the Constitution. Note that the Prime Minister and Ministers will almost always also be members of Parliament. 153 Art. 68 of the Constitution. Note that the infamous ‘Lodo Schifani law’ (Law No. 140 of 20 June 2003, Gazzetta Ufciale No. 142 of 21 June 2003), Art. 1 of which provided for total (albeit temporary) personal immunity from prosecution whilst in ofce for the President of the Republic, the Presidents of the two Chambers, the Prime Minister and the President of the Constitutional Court, was struck down by the Constitutional Court as being unconstitutional: see Corte Costituzionale, sentenza No. 24 of 20 January 2004, reported in Gazzetta Ufciale, I Serie Speciale, edizione straordinaria of 24 January 2004. 154 Art. 122 of the Constitution.

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The Parliament Draft is silent on these matters. Accordingly, if the Draft were to be adopted, it is to be presumed that, in relation to the Prime Minister, Ministers, and members of Parliament, authorization of one of the Chambers of Parliament would be necessary before a trial in Italy or surrender to the ICC. Further, in relation to views expressed in exercise of their functions by members of Parliament or members of Regional Councils, at present it appears that no trial or surrender is possible. However, as noted above, it has been suggested that the problems may be resolved by interpreting the relevant provisions granting immunity in the light of Article 11 of the Constitution, in the sense that the ICC constitutes an international organization having as its aim the promotion of ‘peace and justice among Nations’, or in the light of the general provision of Article 10, which provides that the Italian legal order conforms to generally recognized norms of international law.155 It has also been suggested that, at least in relation to the immunity of the President of the Republic, the commission of any of the core crimes would amount to an ‘attack on the Constitution’, and that accordingly no immunity would subsist in any case.156 The Parliament Draft contains no provisions dealing with diplomatic, consular or other immunities enjoyed by nationals of other states. In these circumstances, given that Article 86 of the Parliament Draft provides that Italy will cooperate with the ICC in accordance with, inter alia, the Rome Statute and its other international treaty obligations,157 Italian law relating to diplomatic and consular immunities will continue to apply in relation to the diplomatic and consular agents of states not party to the Rome Statute. In relation to nationals of states parties enjoying immunities, it is not clear how the courts will react. They might, of course, hold that, by becoming party to the Rome Statute, states have waived the immunity of their agents in relation to core crimes, and that this has been imported into Italian law by the draft implementing legislation, in particular the general obligation of cooperation.158 As regards possible obstacles to surrender of nationals to the ICC, the Parliament Draft does not contain any constraints to that effect. Even if the existing constitutional limitations on extradition of nationals were deemed to be applicable 155

See supra note 8 and accompanying text. On these points, see the discussion in Marco Roscini, ‘Great Expectations: The Implementation of the Rome Statute in Italy’, 5 Journal of International Criminal Justice (2007) 492-512; and see also Benvenuti, ‘Italy, Implementation of the ICC Statute’, supra note 15; Paola Gaeta, ‘L’incidenza dello Statuto di Roma sulle norme costituzionali italiane in material di immunità’, 2 Diritto pubblico comparato ed europeo (2000) 594–605. 156 Cf. Roscini, ‘Great Expectations’, supra note 155, at 16. 157 Art. 86 of the Parliament Draft; see also Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, in force 24 April 1964, 500 United Nations Treaty Series 95; Vienna Convention on Consular Relations, Vienna, 24 April 1963, in force 19 March 1967, 596 United Nations Treaty Series 262 (both given effect by Law No. 804 of 9 August 1967, Gazzetta Ufciale No. 235 Supplemento Ordinario of 19 August 1967). 158 See Art. 86 of the Parliament Draft.

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mutatis mutandis, to surrender to the Court, it seems that those provisions would not in practice represent an obstacle to the surrender of Italian nationals to the ICC, given that Article 26(1) of the Constitution provides that ‘[a] citizen may be extradited only if expressly foreseen by international conventions’.159 Similarly, it seems clear that the constitutional prohibition of extradition (both of nationals and non-nationals) for ‘political crimes’ will never prevent the Italian authorities from extraditing (or surrendering) an individual accused of core crimes under the Rome Statute.160 Although the relevant constitutional provisions do not contain a denition of the concept of ‘political crime’, it is generally accepted that that notion, for the purposes of refusal of extradition, refers to acts committed ‘for the purpose of ghting non-democratic regimes or of afrming fundamental freedoms’161 and that the purpose of the relevant articles of the Constitution is essentially to avoid the possibility that the Italian State might collaborate in rendering possible politically motivated prosecutions abroad.162 In any case, the Parliament Draft, if ever adopted, will resolve any doubts in this regard as it contains a provision which expressly excludes the offences subject to the jurisdiction of the ICC from being qualied as being of a political nature.163

159

Art. 26(1) Constitution; see also Art. 13 of the CC. On the prohibition of extradition for political crimes, see Art. 26(2) (in relation to citizens) and Art. 10(4) (in relation to foreigners) of the Constitution. Constitutional Law No. 1 of 21 June 1967, Gazzetta Ufciale No. 164 of 3 July 1967, species that Art. 26(2) and Art. 10(4) of the Constitution do not apply to the crime of genocide. 161 Court of Criminal Cassation, Section I, 12 December 1990 (Checchini case) (Cass. pen., sez I, 12 dicembre 1990 (Checchini)) reproduced in Rivista Penale (1991), 872; Cassazione penale, vol. 30-II (1990), 1479. 162 Court of Criminal Cassation, Section I, 23 January 1990 (Van Anraat case) (Cass. pen., sez. I, 23 gennaio 1990 (Van Anraat)), reproduced in Cassazione Penale , vol. 30 (1991) 1746, at 1749: ‘the purpose of the provisions contained in Arts. 10(4) and 26(2) . . . is essentially that of prohibiting the Italian State from collaborating in making possible the unleashing of vendettas guided by partisanship’. The constitutional notion of ‘political crime’ for the purpose of extradition is therefore entirely different from that contained in Art. 8 of the CC (on which, see supra note 18 and the corresponding text). On the doctrinal debate on the concept of ‘political crime’ in the Italian Constitution, see, e.g., Enzo Cannizzaro, ‘Sui rapporti fra diritto costituzionale e divieto di estradizione per reati politici’ in Rivista di diritto internazionale (2000) 157–159; Mario Chiavario, ‘Reati politici, terrorismo, estradizione: sviluppi e prospettive recenti’, in Foro italiano (1986) 267–274; Giovannangelo De Francesco, ‘Reato politico’ in Enciclopedia del Diritto (Giuffré: Milan, 1987), vol. 38, 897–915; Franco Mosconi, ‘Spunti in tema di estradizione per reati politici’, in Indice Penale (1972) 333; Rolando Quadri, ‘Estradizione (Diritto Internazionale)’, in Enciclopedia del Diritto (Giuffré: Milan, 1967), vol. 16, 1–59 in particular at 22– 21; Antonio Cassese, ‘Articolo 10’ in Giuseppe Branca (ed.), Commentario della Costituzione. Principi fondamentali (Zanichelli: Bologna-Roma, 1975) 485 at 551; Enzo Cannizzaro and Andrea Caligiuri, ‘Articolo 10’ in Raffaele Bifulco, Alfonso Celotto, Marco Olivetti (eds.), Commentario alla Costituzione (UTET, Turin, 2006), vol. I, 242. 163 Art. 4 of the Parliament Draft. 160

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Italy still retains life imprisonment for a number of serious crimes.164 Therefore, no obstacle exists in relation to a request for surrender for a crime where life imprisonment is an available sentence.

4. Enforcement of Sentences Although Italy in 2004 entered into an agreement with the ICTR to accept persons convicted by the tribunal,165 it has not indicated its willingness to accept prisoners from the ICC under Article 103 of the Statute. However, the Parliament Draft contains provision laying down the necessary procedures according to which, following the deposit of the appropriate declaration, persons convicted and sentenced by the ICC may serve their sentence within Italian territory. The competent authority for the enforcement of judgments of the ICC will be the Rome Court of Appeal.166 The Minister of Justice is to transmit the relevant request of the ICC to the prosecutor attached to the Court of Appeal, who shall request the court to recognize the judgment.167 The Court of Appeal will refuse to recognize the judgment of the ICC if the judgment is not nal according to the Statute and the Rules of Procedure and Evidence or if a nal judgment based on the same facts has been issued with respect to the same person in Italy.168 In other cases, the Court of Appeal will deliver a judgment stating the sentence to be served in Italy in accordance with Article 105(1) of the Statute; however, the sentence imposed by the Court of Appeal cannot exceed a period of 30 years.169 In accordance with Article 106 (2) of the Rome Statute, the Parliament Draft provides that the enforcement of the sentence and the conditions of imprisonment shall be governed by Italian law, thus ensuring that the conditions of imprisonment of individuals convicted by the ICC will be the same as 164

See Art. 17 of the CC. The conclusion of the agreement was authorized by Law No. 181 of 2 August 2002, supra, note 108, and was ratifed by Law No. 64 of 6 February 2006, ibid.; see also ICTR Press Release ICTR/INFO-92-379.EN of 17 March 2004. 166 Art. 102 of the Parliament Draft. 167 Art. 103(1) and (3) of the Parliament Draft. Pursuant to Art. 103 (2) of the Draft, to the request of the ICC there shall be attached: (a) a copy of the sentencing judgment; (b) a statement indicating the period of sentence that has already been served; (c) every medical report on the physical/psychological conditions of the prisoner and every recommendation the ICC deems necessary to make with regard to treatment of the prisoner and the modalities in which the sentence shall be enforced in Italy. The Minister of Justice shall request the ICC to transmit the necessary information which is not attached to the original request. 168 Art. 103(4) of the Parliament Draft. 169 Art. 103(7) of the Parliament Draft. 165

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those available to prisoners convicted of similar offences in Italy. 170 No additional provision has been made in order to ensure that the detention facilities meet international standards governing the treatment of prisoners but domestic rules relating to conditions of detention are already in place.171 Under the Parliament Draft the Minister of Justice is to agree with the ICC the modalities of how the ICC will supervise the enforcement of sentences in Italy and will ‘take the necessary steps in order to ensure free and condential communication between the prisoner and the ICC’.172 Prior to taking any decision which could result in the cessation, even temporary, of the imprisonment of the detainee, the competent judicial authority must inform, and transmit the relevant documents to, the Minister of Justice who will, in turn, inform the ICC.173 Proceedings before the competent judicial authority are then adjourned for 45 days, and in any event, the enforcement of the decision of the competent judicial authority is suspended until the ICC gives its consent.174 If the sentence has been reduced by the ICC following a review under Article 110 of the Rome Statute, the Minister of Justice noties the prosecutor of the Rome Court of Appeal, who issues an order stating the remainder of the sentence that the prisoner has left to serve in Italy.175 The order is notied to the prisoner and to his or her lawyer.176 The Parliament Draft also provides for the duty of the Minister of Justice to promptly inform the ICC of the escape of the prisoner, of his or her death, and of the fact that the prisoner is going to be released upon the completion of the sentence.177 Further, if, after the decision to enforce the judgment of the ICC in Italy has been taken, ‘it becomes impossible to enforce the sentence in Italy’, the Minister of Justice shall inform the ICC without delay.178 170

Art. 104(1) of the Parliament Draft. Despite the existing legislation, Italy has been subject to international criticism as a result of the endemic problem of overpopulation, the consequent negative impact on conditions of detention of prisoners, and the existence of instances of abuse: see e.g. the latest publicly available report of the European Committee for the Prevention of Torture of the Council of Europe, ‘Rapport au Gouvernement de l’Italie relatif à la visite effectuée en Italie par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT) du 21 novembre au 3 décembre 2004’, Doc. CPT/Inf (2006) 16, 27 April 2006, <www.cpt.coe.int/documents/ita/2006-16-inf-fra.pdf> (visited 4 October 2006). 172 Art. 105 of the Parliament Draft; see also Arts 106 (1) and (3) of the RS. 173 Arts 104(1) and (2) Parliament Draft; see also Art. 103(2)(a) of the RS. 174 Art. 104 (3) of the Chamber of Deputies Draft; note that no equivalent to this provision exists in the Senate Draft. 175 Art. 108(1) of the Parliament Draft. 176 Art. 108(2) of the Parliament Draft. 177 Art. 106 of the Parliament Draft. 178 Art. 109 of the Parliament Draft. 171

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Should the ICC request that a person serving a sentence imposed by it in Italy be transferred to another state (or to the ICC itself), the Minister of Justice shall transmit the request to the prosecutor attached to the Rome Court of Appeal.179 The prosecutor makes an application to that court for a custodial measure to be applied to the person to be transferred. Upon the issue of the order for custody, ‘the enforcement of the sentence within the territory of the Italian State ends’.180 The Court of Appeal issues an order ordering the surrender of the detainee (in accordance with the details of the time, place and mode of transfer specied by the Minister of Justice).181 Sentences imposing ‘restrictions of personal liberty’ for any conduct prior to delivery of an individual to Italy shall not be enforced against a person sentenced by the ICC without the consent of the ICC.182 In the same way, the consent of the ICC is required in order to grant the extradition of a person sentenced by the ICC and held in Italian custody.183 The Parliament Draft provides that, when a request or proposal for a pardon is received by the Minister of Justice in relation to a prisoner sentenced by the ICC, he must inform the ICC of that fact.184 Quite apart from the fact that the possibility of pardons being granted by a State detaining an individual is not foreseen by the Statute, the provision contained in the Draft introduced in the Chamber of Deputies is objectionable in that, in addition, it envisages a form of tacit consent by the ICC. Specically, if no response is received from the ICC within the relatively short period of 45 days, the proposal or request for a pardon is forwarded to the President of the Republic.185

179

Art. 110 of the Parliament Draft refers to the ‘corte d’appello competente ai sensi del 730(1) Cpp [Code of Criminal Procedure]’. This appears to be an oversight rather than a reference to a different court. See also Article 104 of the Rome Statute. 180 Art. 110(2) of the Parliament Draft. 181 Art. 110(3) of the Parliament Draft. 182 Art. 111(1) of the Parliament Draft; cf. Article 108 of the RS. The competent judicial authority shall inform the Minister of Justice, who shall attempt to obtain the consent of the ICC to the enforcement of the sentence: see Art. 111(2) of the Parliament Draft. 183 Art. 111(3) of the Parliament Draft. 184 Art. 107 (1) of the Parliament Draft. Pursuant to Art. 87 of the Constitution, the power to grant pardons is vested in the President of the Republic. According to Art. 681 of the CPP, requests or proposals for pardons are presented to the Minister of Justice, who then communicates them to the President of the Republic. 185 Art. 107 (2) of the Chamber of Deputies Draft. The corresponding provision of the Senate Draft (Art. 106) contains no equivalent provision in this regard.

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Provision is also made by the Parliament Draft for enforcing orders made by the ICC in relation to nes and forfeitures or reparation under Article 75 of the Statute: such an order of the ICC must be registered by the Court of Appeal, which directs the enforcement of the measures in question.186

IV. Conclusions 1. Complementarity In light of the present study, it is clear that if Italy still wants to be able to conduct trials over the most serious international crimes in unhindered exercise of its sovereignty, it strongly needs implementing legislation that fully transposes the core crimes and the other relevant provisions of the Rome Statute into the national legal system. As discussed above, over the years Italy undertook a series of international obligations by ratifying various international treaties criminalizing some of the core crimes, but each of these treaties lacked any means of enforcing individual criminal responsibility on the international level. Therefore, the absence of domestic implementing legislation did not entail any practical consequences for Italy. This might change now, as the International Criminal Court operates under the complementarity principle. In practical terms, this means that Italy should be aware of the fact that a failure to adopt domestic legislation implementing the Rome Statute may cause the ICC to consider Italy unable to prosecute within the meaning of Article 17 of the Rome Statute in relation to a number of the core crimes, in relation to which the domestic legislation does not, at present, reect the relevant provisions of the Rome Statute, thus asserting its jurisdiction over certain cases.187

2. Cooperation The principal conclusion to be drawn from the above study in relation to the readiness of Italy to comply with its obligations of cooperation with the ICC is that there is a desperate need for some legislation to be passed, since, as matters stand, Italy is in practice unable to cooperate effectively with the ICC. It is particularly important that legislation is adopted in a timely fashion, in order to avoid repetition of the embar186

Art. 112 of the Parliament Draft. See Bellelli, ‘Come adattare L’Ordinamento Giuridico’, supra note 5, at 1301; Benvenuti, ‘Italy, Implementation of the ICC Statute’, supra note 15, at 124; and Amnesty International report, ‘Law reform needed’, supra note 12, at 1-2. 187

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rassing situation which occurred in 2001, where the Italian authorities were unable to comply with an arrest warrant issued by the International Criminal Tribunal for Rwanda due to the lack of any legislation implementing Italy’s obligations of cooperation with the Tribunal.188 Having said this, the Parliament Draft and its proposed scheme for implementation of the obligations of cooperation under the Rome Statute undoubtedly constitutes a step in the right direction. The draft implementing legislation is far from perfect, and some of the procedures it envisages, for instance that relating to the taking of evidence, are overly-convoluted and unnecessarily complex and in practice may lead to unnecessary delays in the execution of requests from the ICC. Despite these criticisms, in most respects the proposed implementing legislation would effectively implement the majority of the other obligations of cooperation incumbent on Italy under the Rome Statute. However, as noted above, concerns are raised in particular by the omission of any provision dealing with the issues of constitutional immunities, the provision in the Chamber of Deputies Draft which appears to contemplate the tacit consent of the ICC in relation to pardons, and the apparent possibility, resulting from the reference back to the existing rules on cooperation, that the executive might be able to refuse cooperation with the ICC on grounds of national security. As noted above, certain of these issues, in particular those relating to immunities, may be resolvable by the courts through interpretation of the relevant existing domestic rules in a way consistent with the requirements of the Rome Statute. However, a far preferable solution would be the modication of the Parliament Draft and/or the adoption of additional legislation (if necessary, of constitutional rank)189 in order to directly address these issues.190

188 The individual requested was a Rwandan national residing in Italy, who was wanted for charges of genocide and crimes against humanity: for a brief discussion of this incident, see Amnesty International, ‘Law reform needed’, supra note 12, at 59. 189 This technique has been used, for instance, in order to exclude the possibility of relying on the political nature of acts of genocide to avoid extradition; see supra note 160. 190 This is particularly the case in relation to the issue of surrender to the ICC, where it would be far clearer if new provisions on surrender to the Court were adopted, rather than merely referring back to the existing rules relating to inter-state cooperation and extradition, thereby incorporating the limitations contained in those norms.

Implementation of the Rome Statute in Russia Sergey Vasiliev* and Anna Ogorodova**

I. Constitutional Issues 1. Status of Ratication The Russian Federation signed the Rome Statute on 13 September 2000.1 The Statute has not been ratied yet.2 An advisory board, comprising experts from the Ministries of Justice, Defence and Foreign Affairs, as well as from the Federal Security Service and the Ofce of the Russian Prosecutor General,3 has been set up under the aegis *

LL.M. in European and International Criminal Law, Maastricht University (2005); PhD candidate, Amsterdam Centre for International Law, University of Amsterdam. This publication is part of the research project entitled ‘International Criminal Procedure: In Search of General Rules and Principles’ funded by the Dutch Organization for Scientic Research (NWO). ** LL.M. in Human Rights, Central European University (2004); Associate Legal Ofcer, Open Society Justice Initiative (Budapest, Hungary). The present article reects the status of laws and general legislative developments in domestic law up to 1 March 2007. The authors would like to express their sincere appreciation to Professors André Klip, Bakhtiyar Tuzmukhamedov, Göran Sluiter and Harmen van der Wilt for their substantial comments. The vast support of Cornelia Schneider, Matthias Goldmann and Isabelle Walther at all stages of the review is gratefully recognized. Any errors and misconceptions are the sole responsibility of the authors. 1 See the notication of the Russian Ministry of Foreign Affairs on signature of the Rome Statute, <www. ln.mid.ru/Bl.nsf/arh/2F8DA2742520D16D4325699C003B6305?OpenDocument> (visited 22 September 2006) and Order of the President of the Russian Federation no. 349-rp of 8 September 2000 (on signature of the Rome Statute of the International Criminal Court),            (Bulletin of Laws of the Russian Federation, hereinafter ‘SZRF’) (2000), no. 37, article 3710. 2 On the probable political causes of the delay in ratication, see Maria Kolesnikova, ‘V – Moscow’s Touchy Vigilance’, International Justice Tribune, no. 58, 4 December 2006, 3-4. 3 Executive Order no. 323 of 3 June 2003 (on the interdepartmental division of tasks in participation of the Russian Federation in international organizations of the UN System), SZRF (2003), no. 23, article 2238, as amended on 17 November 2004. Although full ofcial citation of Russian legislation ought to include publication details of all its subsequent amendments, these are omitted here out of space concerns. Updated legislative texts with incorporated amendments are not ofcially published and are available only through commercial databases of Russian law, such as ‘Garant’ (www.garant.ru) or ‘Consultant’ (www.

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of the Ministry of Justice to prepare a proposal for ratication and implementation. The draft prepared by the advisory board has already been rejected at least once by the President’s administration and returned for improvement. For the time being, the draft continues to be under consideration and is unavailable to the public. It is hard to surmise when the draft will be approved and introduced to the State Duma, the lower chamber of Parliament, by the President.4 According to Russian law, the Rome Statute—like any other treaty—can only be ratied after its constitutionality and compliance with national legislation have been ensured.5 Thus, any domestic measures to implement the Statute will need to include amendments to domestic legislation.

2. Constitutional Obstacles to Ratication Some constitutional problems are to be expected in the ratication process.6 For instance, Article 61(1) of the Constitution prohibits the deportation of Russian citizens out of Russia and their extradition to another state.7 Similarly, the legal framework of the Rome Statute might be seen as potentially curtailing the constitutional rights to be tried by jury,8 to seek pardon9 and not to be punished twice for the same crime (non consultant.ru). These databases have been used by the authors for reference. 4 In his 2006 interview to Moscow News, Deputy Director of the Legal Department of the Ministry of Foreign Affairs V.A. Tarabrin indicated two years as the most likely time, see Andrei Poskakukhin, ‘   – ’ (‘First case – the Congo’),   (Moscow News) (2006), no. 11, <www.mn.ru/issue.php?2006-11-50> (visited 22 September 2006). 5 Article 16(4) and 22 of the Federal Law on International Treaties of the Russian Federation no. 101-FZ of 15 July 1995, SZRF (1995), no. 29, article 2757, hereinafter ‘International Treaties Law’. 6 For a survey, see Bakhtiyar Tuzmukhamedov, ‘The ICC and Russian Constitutional Problems’, 3 Journal of International Criminal Justice (2005) 621-626. For a list of constitutional objections to the Rome Statute, see Olga Vedernikova, ‘        :      ’ (‘International Criminal Law: Problems of Implementation’),    (Criminal Law) (2003), no. 3, 12-15. 7 Article 61(1) of the Constitution of the Russian Federation, 12 December 1993,      

(Russian Gazette), 25 December 1993, no. 237 (hereinafter ‘Constitution’). For an English translation, see Albert P. Blaustein, Gisbert H. Flanz (eds), Constitutions of the Countries of the World. Release 94-3, issued May 1994 (Oceana: Dobbs Ferry, NY, 1994) 1-42. All further English references to the Constitution herein are taken from this text. 8 Article 47(2) of the Constitution: ‘Anyone charged with a crime has the right to have his or her case reviewed by a court of law with the participation of jurors in cases stipulated by the federal law’. In the literature, reintroduction of the jury trials in Russia has been described as ‘a tool for the evolutionary replacement of Soviet legal proceedings, inquisitorial in form and a reprisal in substance’. See Sergey A. Pashin, ‘The Reasons for Reintroducing Trial by Jury in Russia’, 72 International Review of Penal Law (1999) 253-257 at 256. 9 Article 50(3) of the Constitution: ‘Everyone sentenced for a crime shall have … the right to plea for

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bis in idem).10 As these provisions are part of the Constitution’s immutable Chapter 2 (‘Rights and Liberties of Man and Citizen’), they may not even be amended by means of a regular procedure. As a matter of fact, a new Constitution must be adopted where amendments have to be introduced in its Chapters 1, 2 and 9. For that, the Constitutional Assembly will have to be convened in accordance with the—not yet adopted—federal constitutional law to develop a new draft of the Constitution, which will then have to be approved at a referendum.11 Replacement of a Basic law traditionally embodies a major change in the political system of the country. A drastic constitutional reform for the sole purpose of ratication of the Statute would hardly be approved even by the greatest supporters of the ICC in both the government and the public. If insisted upon, it will rather have a strong dissuasive effect with regard to such ratication or, at best, will signicantly delay it. These considerations fortify the view that an approach excluding constitutional reforms is to be preferred.12 In our view, no constitutional amendment is necessary. The possibility of judicial construction of the Constitution, provided for under national law,13 which has proved a sound alternative to the constitutional amendment in other jurisdictions, may sufce to settle the existing concerns. As far as the ban on the expulsion and extradition of citizens is concerned, an interpretation of Article 61(1) of the Constitution in the light of Article 102 of the Rome Statute to the effect that the provision constitutes no bar to the surrender of Russian citizens to international criminal judicial bodies could be given by the Constitutional Court.14 Then, since the constitutional right to a jury trial yields to a specic regulation of federal law and is only considered absolute when a person is tried for a crime punishable with death,15 no amendment to Article 47(2) of the Constitution will be needed. With regard to the plea for pardon, Article 110 of the Statute (dealing with clemency or mitigation of punishment.’ The President has an unlimited authority to pardon (Article 89(c) Constitution). 10 Article 50(1) of the Constitution. 11 Article 135 of the Constitution. 12 Nizami A. Safarov, ‘The Commonwealth of Independent States’, in Claus Kress, Flavia Lattanzi, Bruce Broomhall and Valeria Santori (eds), The Rome Statute and Domestic Legal Orders (Nomos Verlagsgesellschaft: Baden Baden 2005) vol. II, 479-543 at 482. 13 The Constitutional Court of Russia is competent to render an authoritative interpretation of the Constitution binding on all subjects, see Articles 105-106 of the Federal Constitutional Law on the Constitutional Court of the Russian Federation, Law no. 1-FKZ of 21 July 1994, SZRF (1994), no. 13, article 1447, last amended on 7 February 2007, hereinafter ‘Constitutional Court Law’. 14 For further discussion of such interpretation on merits, see infra, section III.4. 15 See Article 20(2) of the Constitution.

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reduction of sentences by the Court) stipulates a possibility for an effective realization of this right under certain preconditions. Moreover, in interpreting Article 50(3), the Russian Constitutional Court stated that it ‘grants every convict the right to ask for clemency or mitigation of punishment, but this right does not imply that … the convict ought necessarily to be pardoned.’16 The impossibility of seeking full pardon for crimes within the jurisdiction of the Court may also be ‘read into’ Article 50(3), bearing in mind their exceptional gravity. The non bis in idem requirement of Article 50(1) of the Constitution only precludes repeated conviction for the same offence in the Russian jurisdiction and, in any case, allows retrial when the initial trial was conducted with fundamental defects that inuenced the outcome of the case.17 ‘Sham’ proceedings as dened in Article 20(3) of the Rome Statute would undoubtedly fall into this category. Overall, constitutional-rights objections to the ratication of the Rome Statute are generally rather tenuous on merits and as such can hardly obstruct the ratication process unless employed to shroud considerations of a more political kind. Another set of possible problems bears upon immunities that Russian constitutional law accords to the President of Russia, members of the Federal Assembly and judges.18 However, as the present legislation does in fact envisage procedures for stripping immunity from these authorities (provided that they are alleged to have committed a crime), amendments to the provisions of Constitution would not be necessary, strictly speaking.19 The above suggests that no fundamental legislative obstacles to the ratication of the Rome Statute in Russia exist. Rather, it seems to be a matter of political will whether or not Russia in fact wishes to assume the ensuing commitments.20 Any doubts as to the compliance of the Rome Statute with the Constitution could, at least in theory, be settled by the Constitutional Court in the procedure determining whether the Statute is constitutional. However, the jurisdiction of the Constitutional Court in this respect may only be triggered by a party contesting the constitutionality

16

See paragraph 2, In re Alexandr Vladimirovich Gorin, Ruling of the Russian Constitutional Court no. 61-O of 11 January 2002,    ! "  " (Bulletin of the Constitutional Court) (2002), no. 4. 17 Article 50(1) of the Constitution corresponds to, and thus must be interpreted in line with, Article 4(1) and (2) of the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 (ETS 117), Strasbourg, signed 22 November 1984, in force 1 November 1988, ratication 5 May 1998. See paragraph 2, In re Roman Vladimirovich Zelib, Ruling of the Russian Constitutional Court no. 390-O of 20 October 2005, unpublished. 18 Respectively, Articles 91, 98 and 122 of the Constitution. 19 For details, see infra, sections II.4 and III.4. 20 This conclusion nds support in academic circles, see Tuzmukhamedov, ‘The ICC and Russian Constitutional Problems’, supra note 6, at 626.

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of the Statute.21 A decision afrming the Rome Statute’s unconstitutionality would have the effect of precluding its ratication until the Constitution is amended or revised.22 Such a nding remains within the realm of possibilities,23 which means that this scenario would not be without risks for the ratication of the Rome Statute.24 Thus, and in view of the above conclusion that there is in fact no legal conict between the Rome Statute and the Russian Constitution, settlement of the controversial issues through the requests to the Constitutional Court for the interpretation of the concerned constitutional provisions appears the most expedient solution.

3. Position of the Rome Statute in the Russian Legal System In accordance with Article 15(4) of the Constitution, once ratied, the Statute will become an integral part of the Russian legal system.25 As an international treaty, it will occupy a rank inferior to constitutional norms but prevailing over provisions of federal law or any other normative acts.26 Some commentators interpreted Article 15(4) of the Constitution as unreservedly endowing ratied treaties with direct applicability in Russian law.27 However, the present authors subscribe to a view that dismisses an ‘extreme internationalist’ construction of this provision as oversimplifying the actual relationship between international and Russian legal order, and suggests to see the reference to international law in Article 15(4) Constitution as being supplemented by subject-specic references in other cur21 Article 89 of the Constitutional Court Law establishes this condition as a requirement for admissibility of an application. 22 Article 22 and 34 of the International Treaties Law, and Article 91 of the Constitutional Court Law. 23 The Constitutional Courts in Ukraine and Armenia have recognized the Rome Statute unconstitutional, which blocked its ratication by the respective states. See Tuzmukhamedov, ‘The ICC and Russian Constitutional Problems’, supra note 6, at 622. 24 Seemingly, the above-mentioned expert advisory board and certain academics have underestimated the probability of a negative decision by the Constitutional Court, see ibid., at 625-626. 25 Article 15 (4) of the Constitution: ‘The commonly recognized principles and norms of the international law and the international treaties of the Russian Federation shall be a component part of its legal system’. 26 Article 15(1) of the Constitution: ‘[t]he Constitution of the Russian Federation shall have supreme legal force’; Article 125(6) Constitution: ‘international agreements of the Russian Federation may not be enforced and applied if they violate the Constitution of the Russian Federation’; Article 15(4) of the Constitution: ‘[i]f an international treaty of the Russian Federation stipulates other rules than those stipulated by the law, the rules of the international treaty shall apply’. 27 See, for example, Nadine Marie-Schwartzenberg, ‘Droit Russe’, in Antonio Cassese, Mireille DelmasMarty (eds), Jurisdictions nationales et crimes internationaux (Presses Universitaires de France: Paris, 2002) 259-274 at 263.

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rent legislation.28 The qualied approach appears appropriate because it nds reection in Russian law in a form of distinction between self-executing and non-self-executing norms of international treaties. The latter implies that the self-executing provisions of the Statute may be applied directly by Russian courts or executive organs, whereas non-self-executing provisions will need to be transformed into the rules of domestic law to gain legal enforceability.29 The doctrine underlying this distinction is described as a limitation on the enforceability of treaties in national courts imposed by national law, and a manifestation of freedom of implementation in state practice.30 Thus, whether a particular provision of the Statute falls within the category of self-executing or non-self-executing norms within the Russian legal order has to be determined in accordance with national law on a provision-by-provision basis. Given that the Statute covers a complex mix of jurisdictional, procedural and cooperation-related issues, its various provisions are likely to have different positions with regard to direct effect. This is due to both the wording of particular norms of the Rome Statute, which may assist the legislator and law enforcement authorities in discerning the drafters’ intent as to their direct applicability, and the differently formulated references to international law in subject-specic domestic legislation. For example, Article 88 of the Statute prescribes in express language that States Parties shall ensure that there are procedures under their national laws for all forms of cooperation under Part 9 of the Statute. Although this provision is indeed without prejudice to the (non-)self-executing nature of Part 9, it may well be construed as demonstrative of the drafters’ intent to preclude direct applicability.31 Thus, while it is likely that many of the norms on cooperation in Part 9 of the Statute will not be considered self-executing, it is necessary to examine in detail whether the Statute’s substantive and procedural parts may be directly applicable under Russian law. To start with the corpus of the Statute’s substantive rules, provisions contained in Parts 2 and 3 of the Statute regarding material jurisdiction and general principles of criminal law will need the enactment of enforceable norms. The principle of legality, enshrined in both the Constitution32 and the Criminal Code of the Russian Federa-

28 Bahktiyar Tuzmukhamedov, ‘The Implementation of International Humanitarian Law in the Russian Federation’, 85 (850) International Review of the Red Cross (2003) 385-396 at 386. 29 Article 5(3) of the International Treaties Law. 30 See Ward N. Ferdinandusse, Direct Application of International Criminal Law in National Courts (T.M.C. Asser Press: The Hague, 2006) at 136-137. 31 See ibid., at 137. 32 Cf. Article 54(2) of the Constitution: ‘[n]o one may be held liable for an action which was not recognized as an offence at the time of its commitment.’

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tion (hereinafter ‘Criminal Code’),33 is the strongest impediment to the direct effect of international norms in the domain of substantive criminal law.34 An important aspect of the principle as dened in the Criminal Code is that the Code consistently posits itself as the sole source of criminal law.35 Thus, while recognized as a ‘component part’ of the Russian legal system pursuant to Article 15(4) of the Constitution, the provisions of international treaties containing substantive criminal law are not included in the notion of ‘criminal legislation’ as dened in Article 1(1) of the Criminal Code and may not be deemed self-executing.36 In a pivotal resolution, the Russian Supreme Court opined that international norms providing for elements of crimes are directly applicable by Russian courts only when the Code clearly refers to treaties concluded by the Russian Federation.37 As an example of such a case, the resolution alludes to Article 356 on the ‘Use of Banned Means and Methods of Warfare’.38 In holding any other international norm inapplicable in the eld of criminal responsibility, the Supreme Court relies on the fact that international 33 Article 3(1) of the Criminal Code of the Russian Federation, Federal Law no. 63-FZ of 13 June 1996, SZRF (1996), no. 25, article 2954, last amended on 30 December 2006, in force since 1 January 1997 (hereinafter ‘CC’): ‘The criminal character of the conduct, as well as its punishability and other criminal law consequences shall be dened only by the present Code’ (emphasis added). All provisions of the CC cited in the present article are translated by the authors. 34 ‘Deriving substantive criminality from international law for a prosecution is in many aspects the “hard case” that makes questions … regarding the principle of legality … most pressing’, Ferdinandusse, Direct Application of International Criminal Law, supra note 30, at 14; for detailed analysis, see 221-268. 35 Article 1(1) of the CC: ‘[t]he criminal legislation of the Russian Federation consists solely of the present Code. New laws providing for criminal responsibility are subject to inclusion therein’; cf. Article 3(1) of the CC, supra note 33. See also Bogdan L. Zimnenko, ‘           :     "   ’ (‘International Law in the Judicial Practice of Russia: Criminal Process’),    #   (Rossijskaja Justitsija) (2003), no. 10, 10-13. 36 For the same conclusion, see Igor I. Lukashuk, ‘Contemporary international criminal law: concept and general features’, in Roger Clark et al. (eds), International and National Law in Russia and Eastern Europe: Essays in Honour of George Ginsburgs (Martinus Nijhoff: The Hague, 2001) 261-277 at 268. Ferdinandusse’s argument to the contrary based on the CC’s general aim to ‘ensure the peace and security of mankind’ (Article 2(1) of the CC) and on its having both the Constitution and generally recognized principles and norms as a foundation (Article 1(2) of the CC) seems of limited value in this context, see Ferdinandusse, Direct Application of International Criminal Law, supra note 30, at 37-38. 37 Resolution of the Plenary Conference of the Supreme Court no. 5 of 10 October 2003 (concerning the application of generally recognized principles and norms of international law as well as treaties by Russian courts), $#    % "  (Bulletin of the Supreme Court of the RF) (2003), no. 12, para. 6. Resolutions of the Plenary Conference of the Supreme Court are binding on lower courts by virtue of Article 56 of the Law of the RSFSR on Courts’ Organization in RSFSR no. 976 of 8 July 1981,  & '  * +% / "   (Gazette of the Conference of the Peoples’ Deputies of RSFSR), 16 July 1981, no. 28, article 976, last amended on 20 August 2004. 38 For detailed analysis of Article 356 of the CC, see infra, section II.2.

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treaties prescribing criminal responsibility generally contain explicit language obligating states to ensure criminalization of the respective offences through amending national law. The absence from the Statute of express implementation obligations with regard to its substantive criminal law indeed raises a question to what extent this argument would be valid to block the direct applicability of the Statute with regard to the elements of crimes and general principles of criminal responsibility.39 The demerits of the Supreme Court’s argument aside, the present state of affairs is that the direct effect of international law norms, whether treaty-based or not, will only be admitted where the provision of the Criminal Code serving as a legal basis for a charge contains a reference to the international norm. This approach is concerned with a number of specic problems that may have bearing on the effective application of international criminal law in the practice of Russian courts. The rst problem is the scarcity of references to international law in the Code: as to the crimes falling within the jurisdiction of the Court, only Article 356 on war crimes contains such a rule of reference. The second problem is in inevitable practical difculties related to the effective application of reference rules by courts. Although Russian courts are vested with the mandate to enforce generally recognized norms and principles of international law and the provisions of international treaties binding on Russia,40 judges lack experience in applying rules of international law. In addition to that, an array of acute practical problems may impede reliance on international norms (deciency of translations of international treaties and decisions of international organs, lack of training in international law, and so on).41 These factors strongly suggest that, instead of following the ‘reference approach’, it would be reasonable to furnish the Criminal Code with a comprehensive list of international crimes equipped with clearly dened elements. By virtue of ‘insularity’ of Russian criminal law vis-à-vis international law, implementation of the Statute’s substantive law should not be conned to an indirect way of incorporation relying 39

On the effect of complementarity on implementation of the Statute’s substantive law by the States, see Jann Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’, 1 Journal of International Criminal Justice (2003) 86-113 at 90-94. 40 Articles 3 and 5(3) of the Federal Constitutional Law on the Judicial System of the Russian Federation, Law no. 1-FKZ of 31 December 1996, SZRF (1997), no. 1, article 1, last amended on 5 April 2005, hereinafter ‘Law on the Judicial System’. Text in English (not incorporating latest amendments) is available at the RussiaSite.org, Russian Laws in Translation, <www.therussiasite.org/legal/laws/courtsystemlaw. html>, unofcial translation by John Fowler (visited 22 September 2006). 41 For an overview, see Gennady M. Danilenko, ‘Implementation of International Law in CIS States: Theory and Practice’, 10 European Journal of International Law (1999) 51-69 at 58 and 69, and Gennady M. Danilenko, ‘The New Russian Constitution and International Law’, 88 American Journal of International Law (1994) 451-470 at 466. Since the time of writing of those contributions, the situation may certainly have improved, but not to such a degree as to dismiss the problem completely.

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on Article 15(4) of the Constitution, and supplemented by specic (ad hoc) rules of reference in the special part of the Criminal Code. Rather, to be fully operational in Russian jurisdiction and to preclude any potential implementation gap, the substantive law of the Rome Statute should be accurately transformed into norms of municipal criminal law. Additionally to that, as will be shown below, Russia still ought to close numerous gaps persisting with regard to implementation of its obligations under other international treaties to which it is a party.42 As far as the provisions of the Statute on admissibility and procedure are concerned,43 they may be considered as self-executing and thus directly applicable in the Russian legal order upon ratication. In contrast to the Criminal Code, the more recent Code of Criminal Procedure contains a formula that accommodates Article 15(4) of the Constitution in the domain of the administration of criminal justice.44 Specically, the Code refers to the ‘generally recognized principles and norms of international law and the international treaties of the Russian Federation’ as a ‘constituent part of its legislation regulating criminal procedure’ (‘legislation’ being a more precise term as opposed to the broader concept of ‘legal system’ in Article 15(4) of the Constitution).45 The Criminal Procedure Code further establishes that if an international treaty of the Russian Federation sets rules other than those stipulated by the Criminal Procedure Code, the rules of the international treaty will apply. This implies that international norms binding on Russia relative to criminal process generally do have direct effect in its jurisdiction. A question may arise as to why this type of a prevalence clause is absent from the Criminal Code, and some commentators argue boldly for the inclusion in the Criminal Code of a norm analogous to Article 1(3) of the Criminal Procedure Code.46 However, this proposition seems to disregard the functional difference between the substantive and procedural criminal law treaties that may indeed affect states’ disposition to allow for direct effect. With regard to criminal procedure, international treaties as a rule envisage human rights standards and minimum procedural safeguards that benet concerned persons. The same can hardly be said of the treaties providing for 42

For details, see infra, section II.2. Cf. Article 10 of the RS. Notably, Articles 17, 18, 54, 59, 72, 73 and others. 44 Article 3(1) of the Criminal Procedure Code, Federal Law no. 174-FZ of 18 December 2001, SZRF (2001), no. 52, part I, article 4921, last amended on 30 December 2006 (hereinafter ‘CPC’). All provisions of the CPC cited in the present article are translated by the authors. 45 Cf. Danilenko, ‘The New Russian Constitution’, supra note 41, at 465; Tuzmukhamedov, ‘The Implementation of International Humanitarian Law in the Russian Federation’, supra note 28, at 386. 46 For example, Alexei G. Kibal’nik, ‘ $    $         

' \  ’ (‘Application of international criminal law in the national jurisdiction’, $ \$ (Rossijskaja Justitsija) (2002), no. 10, 60-62. 43

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crimes and modes of criminal responsibility. As noted earlier, in view of the particular signicance attached to the legal certainty in substantive criminal law, there seem to be sound considerations militating against extending the direct application of international rules to this domain.

II. Complementarity 1. General Principles of Jurisdiction The Criminal Code provides for both territorial and extraterritorial bases of jurisdiction.47 On the former ground, criminal responsibility can be invoked against any person who commits a crime on the Russian territory.48 Criminal responsibility for extraterritorial offences is predicated on the principles of nationality, protection and universality. Thus, criminal jurisdiction can be asserted in respect of Russian citizens and stateless persons permanently residing in Russia, if their acts abroad are recognized as crimes in a state on the territory of which the crimes were committed – with the qualication that the alleged criminals have not been convicted for the same crime previously.49 Russia may also assert criminal jurisdiction over non-nationals who are present on its territory with regard to acts jeopardizing the interests of Russia committed outside its boundaries unless the accused has already been convicted for the same offence in a foreign state.50 Lastly, universal jurisdiction is applicable (subject to the ne bis in idem rule and provided that the person is charged in Russia) in cases where an obligation to prosecute is enshrined in an international agreement to which Russia is a party.51 Since Russia is a party to a number of such conventions,52 it can be inferred that universal jurisdiction is already foreseen for certain ‘core’ crimes, which the Rome Statute deals with, when the relevant acts in the aforementioned conventions are similarly criminal47

Articles 11 and 12 of the CC. Article 11(1) of the CC. Pursuant to Article 11(2) of the CC, jurisdiction extends to crimes committed within the territorial waters, the air space, the continental shelf and the exclusive economic zones of the Russian Federation. 49 Article 12(1) of the CC. For a discussion of the ne bis in idem principle, see infra, sections II.4 and III.4. 50 Article 12(3) of the CC. 51 The Russian Federation is a state-successor to the USSR in respect of all rights and obligations resulting from international treaties of the USSR and also in respect of membership in international organizations. This affords speaking of continuation rather than succession stricto sensu as established by Article 1(3) of the International Treaties Law. 52 See, e.g., instruments mentioned in notes 71, 72, 78 and 79, infra. 48

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ized under the Criminal Code. Due to an implementation gap existing in the Criminal Code in respect of certain crimes under international law anterior to the Statute,53 Russia may, at present, assert universal jurisdiction only with regard to grave breaches of the Geneva Conventions and the Additional Protocol I, as well as in regard of serious breaches of Article 3 common to the Geneva Conventions.

2. Core Crimes 2.a. Genocide Russia is a party to the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the ‘Genocide Convention’).54 The prohibition of genocide is reected in domestic law under Article 357 of the Criminal Code, which by and large reproduces the elements set out in Article II of the Genocide Convention and Article 6 of the Rome Statute by criminalizing [c]onduct directed at the complete or partial destruction of a national, ethnic, racial or religious group as such by killing members of this group, inicting grave injuries to their health, forcible prevention of childbirth, forcible transfer of children, forcible resettlement, or by any other methods of creating living conditions meant for the physical destruction of the members of this group.

However, attentive reading reveals subtle variances in the wording, which, in practice, might lead to divergent interpretations over the material scope and the applicable evidentiary standards of the respective articles. For instance, the Criminal Code places no emphasis on the intent to destroy a national, ethnical, racial or religious group (the required mens rea under both the Genocide Convention and the Rome Statute). It stipulates merely that the conduct in question be ‘directed at the destruction of a national, ethnical, racial or religious group’.55 Thus, it can be argued that under the Russian law the dolus specialis (culprit’s desire to bring about a certain result) is formulated as an element of the actus reus (a specic type of conduct of a nature to bring about a certain consequence, that is, the complete or

53

See infra, section II.2. Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948, in force 12 January 1951, ratication (USSR) 3 May 1954 (with reservations to Articles IX and XII), 78 United Nations Treaty Series 277. Insofar as the Genocide Convention fails to provide for universal jurisdiction, Russia may not establish this type of criminal jurisdiction in relation to the crime of genocide pursuant to Article 12(3) of the CC. 55 Besides perpetration, Article 33 of the CC forbids complicity in a crime in the forms of organization, instigation, and aiding. 54

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partial destruction of a group).56 That such a departure is not merely an inaccurate translation of the Convention but rather a legislator’s deliberate choice nds support in that the language of Article 357 could have been borrowed with greater facility directly from Article II of the Russian language version of the Genocide Convention. At the same time, the 2003 amendment that only included the words ‘as such’ in the text of Article 357 is evidence of the fact that the legislator’s intention to approximate it to the traditional denition did not go as far as to mirror the mens rea element under the Convention. An important implication of the discussed difference is that, while still having to establish the intentional character of the conduct that directly targets individuals, the prosecution is absolved from the onerous task of proving the special intent to annihilate an identied group. Admittedly, this presented a formidable problem in the context of international criminal proceedings as the special intent had to be inferred from circumstantial evidence.57 This interpretation of Article 357 of the Criminal Code suggests that for genocide to be held to have occurred, it would sufce to establish the fact of a conduct which in the ordinary course of events invariably results in complete or partial destruction of the group (such as killing of its members, inicting grave injuries and other similar acts which in themselves imply the existence of a specic intent regarding the targeted group). While the prosecution still has to demonstrate that the victim was targeted on the basis of perceived membership of one of the indicated groups,58 it is submitted that the present language of Article 357 may be construed as setting a lower mental element threshold than Article 6 of the Rome Statute. It remains to be seen whether a Russian court—if and when any proceedings on charges of genocide are brought before it—will adopt this interpretation or if it would rather stick to the concept embodied in the Genocide Convention. The former alternative would certainly have to be hailed for ensuring the abandonment of the dolus specialis approach that has been a target of criticism in doctrine.59 Another aspect where the denition of genocide under the Criminal Code is different from that of the Genocide Convention is that the former formulates the acts 56

Some commentators adhere to this view, see Samvel Kochoi, ‘^ : $,   ',  ’ (‘Genocide: denition, accountability, practice’),    (Criminal Law) (2001), no. 2, 95-97. 57 Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, ICTR, Trial Chamber I, Judgement (2 September 1998) para. 523; Prosecutor v. Clément Kayishema and Obed Ruzindana, ICTR-95-1-T, ICTR, Trial Chamber II, Judgement (21 May 1999) para. 93. 58 Prosecutor v. Radislav Krsti, Case No. IT-98-33-T, ICTY, Trial Chamber I, Judgement (2 August 2001) para. 561. 59 See in particular: Harmen van der Wilt, ‘Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reections on the van Anraat Case’, 4 Journal of International Criminal Justice (2006) 239-257 at 241-243; Alexander Greenawalt, ‘Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation’, 99 Columbia Law Review (1999) 2259-2294 at 2281.

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constituting objective element (actus reus) of genocide under the Convention as the means of complete or partial destruction of a group (modi operandorum). More importantly, it enlarges the conventional list of acts by adding to it ‘any other methods of creating living conditions meant for the physical destruction of the members of this group’,60 which expands the material scope of genocide under Russian criminal law. The fact that the generic term by which the Criminal Code denominates the means of commission of the crime refers to the physical destruction of the members of the group as opposed to that of the group reinforces the earlier observation on the reduced signicance of the special intent vis-à-vis the targeted group under the Code. Lastly, the scope of operation of Article 357 of the Criminal Code exceeds that of the Genocide Convention since it establishes ‘forcible resettlement’ as an act that is associated with the crime of genocide, whereas Article 7(1)(d) of the Rome Statute qualies it as a crime against humanity. The Criminal Code falls short of laying down conspiracy to commit genocide61 and direct and public incitement to commit genocide62 as autonomous offences. Arguably, both crimes can be prosecuted under existing norms on incomplete offences and modes of participation. Conspiracy to commit genocide can be prosecuted under Article 30 of the Criminal Code as a preparation for this crime whenever the crime has not been completed due to circumstances beyond the control of the person concerned. Where genocide is held to have been accomplished, public and direct incitement to commit genocide will be qualied under Article 357 of the Criminal Code with reference to Article 33 of the Criminal Code as complicity in genocide in the form of instigation.63 If such incitement i) did not convince the induced person or did not result in an attempted crime due to circumstances beyond the perpetrator’s control, or ii) did result in an attempted crime, it shall be qualied respectively either as a preparation for complicity in the crime or as an attempted complicity in the crime (Article 357 with references to Articles 30 and 33 of the Criminal Code).64 However, it seems fundamentally misguided to prosecute an autonomous international crime as a form of complicity in another offence,65 since this intrinsically 60

Cf. Article II of the Genocide Convention: ‘[d]eliberately inicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’ is a separate act constituting genocide. 61 Cf. Article III(b) of the Genocide Convention. 62 Cf. Article III(c) of the Genocide Convention and Article 25(3)(e) of the RS. 63 Article 33(4) and 34(3) of the CC. 64 Cf. Article 34(5) of the CC. 65 For a distinction between instigation as a mode of criminal participation and incitement to commit genocide, see Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (T.M.C. Asser Press: The Hague, 2003) at 110-111.

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links the accomplice’s criminal responsibility to that of the perpetrator.66 Thus, while instigation to commit genocide may only be imputed with regard to a complete offence, direct and public incitement to commit genocide as an inchoate offence does not require proof that the acts in question produced the desired result.67 Furthermore, the impossibility of qualifying conspiracy and public incitement to commit genocide as complete offences under the Criminal Code implicates certain undesirable legal consequences, such as limitations on sentencing that may arguably understate their perceived gravity. Firstly, Article 66 of the Criminal Code on the imposition of sentences for inchoate crimes envisages that terms of punishment for the preparation of a crime and for an attempted crime may not exceed respectively one-half and three-fourths of the maximal term of the most severe penalty set out in the article of the Code’s special part. Furthermore, neither death penalty nor life imprisonment may ever be inicted for incomplete offences. Secondly, given the absence from the Code of the stand-alone crimes of direct and public incitement or conspiracy to commit genocide, no separate punishment for them may be inicted and thus there may be no cumulative charges and convictions.68 This would contradict the established practice in international criminal tribunals.69 Thus, inclusion in the Code of separate crimes of genocidal conspiracy and direct and public incitement to commit genocide would promote the position of these offences as self-standing crimes and enable a more accurate—from the international law perspective—qualication of these types of conduct by municipal courts. Moreover, such inclusion would ll the gap in the implementation of the obligation under Article V of the Genocide Convention ‘to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III’ of that Convention. Absent precedents clarifying the purport and purview of Article 357 of the Criminal Code, its scope remains open to interpretation. As a conclusion, however, it may be inferred that, with an exception of direct and public incitement, the Code goes further than would be necessary for compliance with the Rome Statute standards for genocide.

66

See Prosecutor v. Jean Paul Akayesu, Judgement (2 September 1998), supra note 57, para. 529 (‘complicity can only exist when there is a punishable, principal act, in the commission of which the accomplice has associated himself ’). 67 See Guénaël Mettraux, International Crimes and the ad hoc Tribunals (Oxford University Press: New York, 2005) at 256 (referring to the ICTR’s Akayesu, Musema and Kajelijeli cases). 68 Cf. Article 17 and 69 of the Criminal Code. 69 See Mettraux, International Crimes and the ad hoc Tribunals, supra note 67, at 254 (referring to the ICTR’s Kambanda, Niyitegeka, and Nahimana cases).

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2.b. Crimes against Humanity Crimes against humanity are not criminalized in Russian legislation per se. However, different types of conduct underlying what the Rome Statute denes as ‘Crimes Against Humanity’ are prohibited under Russian law as ordinary offences.70 Russia is a party to the Apartheid Convention of 197371 and to the Torture Convention of 1984,72 but the Criminal Code does not contain any provisions on apartheid,73 nor does it specically criminalize torture.74 According to the ofcial explanatory comment annexed to Article 117 of the Criminal Code (‘Torment’), ‘torture means the iniction of physical or psychological suffering aimed at compelling someone to give evidence or to commit other involuntary acts, for the purpose of punishment or for other purposes’. The scope of Article 117, which in paragraph (2)(d) mentions torture as a ground for aggravated responsibility, is limited to cases where the iniction of physical or psychological suffering does not amount to a grave injury or an injury of average gravity. Article 302 of the Criminal Code (‘Compulsion to Give Evidence’)75 names torture as an aggravating circumstance, 70

See the CC, Articles 105 ‘Murder’, 111 ‘Intentional Iniction of a Grave Injury’, 112 ‘Intentional Iniction of an Injury of Average Gravity’, 115 ‘Intentional Iniction of a Light Injury’, 116 ‘Battery’, 117 ‘Torment’, 126 ‘Abduction’, 127 ‘Illegal Deprivation of Liberty’, 127(1) ‘Human Trafcking’, 127(2) ‘Use of Slave Labour’, 131 ‘Rape’, 132 ‘Violent Sexual Actions’, 133 ‘Compulsion to Perform Sexual Acts’, 136 ‘Violation of the Equality of Human and Civil Rights and Freedoms’, 240 ‘Involvement in Prostitution’, 285 ‘Misuse of Ofcial Powers’, 286 ‘Exceeding Ofcial Powers’, 299 ‘Knowingly Bringing an Innocent Person to Criminal Responsibility’, 301 ‘Illegal Detention, Taking into Custody, or Keeping in Custody’, 302 ‘Compulsion to Give Evidence’ (crimes under Articles 299, 301 and 302 may only be committed by criminal justice ofcials in the context of criminal proceedings). 71 International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973, in force 18 June 1976, ratication (USSR) 26 November 1975, 1015 United Nations Treaty Series 243 (hereinafter ‘Apartheid Convention’). 72 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, in force 26 June 1987, ratication (USSR) 3 March 1987 (with reservations), 1465 United Nations Treaty Series 85 (hereinafter ‘Torture Convention’). 73 Some acts constituting apartheid (particularly those mentioned in Article II(c–e) of the Apartheid Convention) and persecution are banned as ordinary crimes violating constitutional rights (Article 136 ‘Violation of the Equality of Human and Civil Rights and Freedoms’ of the CC). 74 On unsatisfactory criminalization of torture under the CC, see Olga Shepeleva, ‘Russian Legislation Now Features the Denition of “Torture”’, Moscow Helsinki Group, <www.mhg.ru/english/2F7698B> (visited 22 September 2006); Sergey V. Vasiliev, ‘  `   "$           ’ (‘Criminalization of Torture in International and Russian Criminal Law’), in Zarshat D. Enikeev et al. (eds),        $     `  $` (Problems of Combating Criminality in the Present Context), Part III (RIO BSU: Ufa, 2004) 108-118; Marie-Schwartzenberg, ‘Droit Russe’, supra note 27, at 264. 75 Article 302(2) of the CC criminalizes the compulsion of a suspect, defendant, victim, or witness to give evidence, or the coercion of an expert to make a report through the application of threats, blackmail, or

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but nevertheless has a narrower scope of application than established in the Torture Convention in that the latter does not limit the group of potential perpetrators to ofcial investigators and does provide for a more extensive list of acts that constitute torture.76 The Criminal Code does not incorporate crimes of extermination and persecution (either per se or as part of another crime). Yet, ‘forcible resettlement’ (traditionally a crime against humanity) is designated as ‘genocide’ under Article 357 of the Criminal Code, ipso facto limiting its application to cases of conduct meant for the physical destruction of the members of the group concerned.77 Thus, the introduction of crimes against humanity (as a separate chapter) in Section XII of the Criminal Code is highly recommended. The possibility to prosecute these crimes as ordinary offences is hardly adequate as the provisions that would apply in such a case are not designed to serve the proper qualication of the ‘widespread and systematic attack’ element in Article 7 of the Rome Statute and thus do not reect the exceptional gravity inherent in crimes against humanity. 2.c. War Crimes Russia is a party to the four Geneva Conventions of 1949,78 the two Additional Protocols of 1977,79 and several other conventions governing belligerents’ conduct.80 This other illegal acts, by an investigator or a person conducting inquests in the course of criminal proceedings, or with the acquiescence of such persons, joined with the use of violence, humiliation, or torture. 76 Cf. Article 1 of the Torture Convention: ‘[t]orture means any act … [committed by a public ofcial or any other person acting in ofcial capacity] … for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind’ (emphasis added). 77 In contrast to genocide, Article 7(1) of the RS does not require a perpetrator’s intention to destroy a group and does not specify precise characteristics of a group, i.e., it is applicable to acts directed against ‘any civilian population’. 78 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Convention (III) Relative to the Treatment of Prisoners of War, and Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, in force 21 October 1950, ratication (USSR) 10 May 1954 (with reservations), 75 United Nations Treaty Series 31, 85, 135 and 287 (hereinafter ‘Geneva Conventions’). 79 Protocol (I) Relating to the Protection of Victims of International Armed Conicts, and Protocol (II) Relating to the Protection of Victims of Non-International Armed Conicts, Geneva, 7 June 1977, in force 7 December 1978, ratication (USSR) 29 September 1989 (with reservations), 1125 United Nations Treaty Series 3 and 609. 80 E.g. Convention for the Protection of Cultural Property in the Event of Armed Conict, adopted on 14 May 1954), entered into force 7 August 1954, 249 United Nations Treaty Series 240, ratication (USSR)

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fact notwithstanding, municipal criminal law neither provides for an exhaustive list of grave breaches of international humanitarian law nor employs the concept of war crimes as established in the Rome Statute. Article 356 of the Criminal Code entitled ‘Use of Banned Means and Methods of Warfare’ specically enforces jus in bello. It differs considerably in its structure and scope from the relevant provisions of both international humanitarian law and the Rome Statute. Article 356(1) of the Criminal Code prohibits ‘cruel treatment of prisoners of war or civilians’,81 ‘deportation of civilian population’, ‘plunder of national property in occupied territories’, and ‘use in a military conict of means and methods of warfare banned by international treaties to which the Russian Federation is a party’. The second paragraph of the provision bans the ‘use of weapons of mass destruction prohibited by international treaties to which Russia is a party’.82 It is self-evident that Article 356 of the Criminal Code is far from enunciating a complete set of norms on criminal responsibility for serious breaches of international humanitarian law.83 Nor does it specify whether it covers crimes committed in an international or non-international armed conict. The use of terms habitual to the law applicable in international warfare (such as ‘prisoners of war’, ‘occupied territories’, ‘deportation’) might suggest that the scope of Article 356 is conned to international conicts. So also does the absence of any reference to the laws and customs of war, which up to now remain—in view of the merely limited body of codied provisions— the principal source of international law for responsibility for war crimes committed in internal armed conicts.84 on 12 December 1956 (hereinafter the ‘Cultural Property Convention’). 81 Cf. Article 85(2) of the Additional Protocol I providing wider protection ratione personae. 82 E.g. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Moscow, London, Washington, 10 April 1972, in force 26 March 1975, ratication (USSR) 11 February 1975, 1015 United Nations Treaty Series 163; Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modication Techniques, New York, 10 December 1976, in force 5 October 1978, ratication (USSR) 30 May 1978, 1108 United Nations Treaty Series 151; Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 10 October 1980, ratication (USSR) 10 June 1982, 1342 United Nations Treaty Series 137 (hereinafter ‘Conventional Weapons Convention’); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Paris, 13 January 1993, in force 29 April 1997, ratication 5 November 1997, 1974 United Nations Treaty Series 45. 83 Tuzmukhamedov, ‘The Implementation of International Humanitarian Law in the Russian Federation’, supra note 28, at 390. 84 Important codied sources to be mentioned include Article 3 common to the Geneva Conventions, the Additional Protocol II, as well as the more recent Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended, Geneva, 3 May 1996 (Amended Protocol II to the Conventional Weapons Convention), in force 3 December 1998, 35 International Legal Materials

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By virtue of explicit reference to international treaties in the text of Article 356(1) of the Criminal Code, grave breaches of the Geneva Conventions and of the Additional Protocol I in the context of an international conict85 are deemed punishable under the Criminal Code. Occasionally, this may result in a broader jurisdiction ratione materiae than under the Statute, insofar as Article 8 of the Statute omits certain conduct prohibited in international armed conicts as grave breaches. Concrete examples are the prohibition of an attack against works and installations containing dangerous forces in the knowledge that such an attack will cause excessive loss of life, injury to civilians, or damage to civilian objects; the unjustiable delay in the repatriation of prisoners of war or civilians.86 However, the reference to ‘means and methods of warfare banned by international treaties to which the Russian Federation is a party’ in effect brings under the material scope of Article 356(1) breaches of Article 3 common to the four Geneva Conventions and—where the Additional Protocol II is held applicable pursuant to its Article 1(1)—all conceivable violations of this Protocol,87 thus making this article of the Criminal Code also applicable in internal armed conicts. It is noteworthy that the scope of criminalization of means and methods of non-international warfare banned by the Additional Protocol II thus appears broader in Article 356 of the Criminal Code than in Article 8(2)(c) and (e) of the Statute, since the latter omits such violations as ‘collective punishment’, ‘acts of terrorism’ and ‘starvation of civilians as a method of combat’.88 As far as customary-law based war crimes are concerned, the Rome Statute asserts far higher standards than current Russian law.89 Since Article 356 of the Criminal Code refers exclusively to international treaties to which Russia is a party, breaches of custom1206 and the Second Protocol to the Cultural Property Convention, The Hague, 26 March 1999, in force 9 March 2004, 38 International Legal Materials 769. See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law (Cambridge University Press, Cambridge, 2005), vol. 1, 552-553. Cf. Article 8(2)(e) of the RS; Article 4 of the ICTR Statute; Article 3 of the ICTY Statute and Prosecutor v. Duško Tadi, Case No. IT-94-1-AR72, ICTY, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) paras. 84 and 89. 85 As dened in Article 50 of Geneva Convention I, Article 51 of Geneva Convention II, Article 130 of Geneva Convention III, Article 147 of Geneva Convention IV, Article 85(3) and (4) of Additional Protocol I. 86 Respectively, Article 85(3)(c) and 85(4)(b) of Protocol I. See Machteld Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court: Genocide, Crimes Against Humanity, War Crimes (Intersentia: Antwerpen, 2002) at 603. 87 Particularly important in this context is Article 4 of the Additional Protocol II. 88 See respectively Article 4 (2)(b) and (d), as well as Article 14 of Additional Protocol II. See Boot, Nullum Crimen Sine Lege, supra note 86, at 604-605. 89 See Articles 8(2)(b) and 8(2)(e) of the RS.

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ary international humanitarian law, applicable in armed conicts of both international and non-international character, remain outside the ambit of the Code.90 As noted earlier, prosecution of war crimes that have not been indicated specically in Article 356 may be complicated by a number of factors.91 Particularly, international humanitarian law treaties can be of little help to national judges when it comes to deciding upon a penalty for a particular war crime.92 ‘War crimes’ is an umbrella term that denotes a variety of offences of a different nature and ranging gravity. It can hardly be said that Article 356, which piles up all possible violations of international humanitarian law as ‘especially grave’ crimes and unscrupulously penalizes them all with an ‘up to twenty years of imprisonment’, duly appreciates this diversity. It should be mentioned that the Criminal Code contains a limited number of provisions other than Article 356 which could partially rectify the gaps in the criminalization of violations of customary international humanitarian law in both internal and international conicts. For instance, Article 358 on Ecocide, that is to say ‘[m]ass destruction of animal or vegetable kingdom, contamination of the atmosphere or water resources and any other conduct capable of causing an ecological catastrophe’, may serve as a ground for criminal responsibility for conduct capable of causing widespread, long-term and severe damage to the natural environment clearly disproportionate to the concrete and direct overall military advantage gained by the harm caused.93 Because Article 358 requires no nexus to an international armed conict, it is equally applicable in internal conicts, a positive contrast to the respective international rules. Another example is Article 360(1) of the Criminal Code, which prohibits assaults against representatives of a foreign state or staff members of an international organization who enjoy international protection, as well as assaults against their ofcial premises, residences, and vehicles.94 The missing reference to a nexus with a state of armed conict indicates that the article was not specically intended to cover situations within an armed conict. However, this provision may equally be applied to punish intentional attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission.95 90

Generally, customary international law is rarely incorporated into Russian law, see: Tuzmukhamedov, ‘The Implementation of International Humanitarian Law in the Russian Federation’, supra note 28, at 387. 91 See supra note 41 and accompanying text. 92 Tuzmukhamedov, ‘The Implementation of International Humanitarian Law in the Russian Federation’, supra note 28, at 391. 93 Article 8(2)(b)(iv) of the RS; Articles 35(3) and 55 of the Additional Protocol I. 94 The second paragraph of this article seems of no relevance in this context, as it establishes aggravated responsibility for the same acts committed for the purpose of provoking war or of endangering international relations, i.e., it applies rather to ad bellum situations. 95 Article 8(2)(b)(iii) and (e)(iii) of the RS.

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All in all, the Criminal Code fails to implement international humanitarian law to a satisfactory extent. The entire body of norms mirroring its customary part—with the rare and unintended exceptions of Articles 358 and 360—is missing from the Criminal Code. The lack of protection in the Code regarding crimes committed in conicts of a non-international character should also be addressed. Thus, it is highly recommended that a new Chapter on ‘War Crimes’, equipped with an elaborate and comprehensive list of war crimes following the form and logic of Article 8 of the Rome Statute and mindful of Russia’s previous commitments to implementation of international humanitarian law, be inserted as part of Section XII (‘Crimes against Peace and Mankind’s Security’) of the Criminal Code. This would remedy some of the inadequacies of international humanitarian law implementation in Russian criminal law and remove complications if Russian courts were asked to decide a case involving a war crime punishable under the Rome Statute.

3. General Principles of Criminal Law Compliance of the general principles of Russian criminal law with the analogous provisions of the Statute is essential for the capacity of Russia to duly prosecute crimes under the Court’s jurisdiction, without running the risk of being labelled ‘unwilling’ or ‘unable’ genuinely to carry out the prosecution. It thus needs to be examined whether differences from the Rome Statute with respect to the regulation of superior responsibility, forms of participation, defences, mental element, retroactivity and statutory limitations are so signicant as to undermine the perceived integrity of national proceedings. The concept of command responsibility is unknown in Russian criminal law and no recognition is given to categories of effective command (authority) and control. The Criminal Code fails to establish superior responsibility, except in cases where the act concerned was committed indirectly by a superior through deliberate misuse of the subordinate’s negligence, or with the intent of both the subordinate and the superior acting as accomplices (with the superior as ‘organiser’ of the crime through the giving of an illegal order). Even when the superior had full knowledge that the forces under his effective control and responsibility were committing, or were about to commit, crimes, it is not possible to charge him or her with any crime committed by the subordinates unless the former is found to have abetted the latter.96 This does not, however, exclude responsibility of superiors for neglect of duty as a separate crime. 97 The scope of the responsibility of superiors under the Rome Statute is essentially broader than under the Criminal Code, since the former requires not just 96 97

See text accompanying infra note 99. Article 293 of the CC.

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to refrain from giving illegal orders, but also to take all necessary and reasonable measures within their power to prevent or repress the commission of crimes by their subordinates or to submit the matter to the competent authorities for investigation and prosecution.98 It is therefore advisable that the concept of superior responsibility be introduced into the Criminal Code in compliance with the standards set out in Article 28 of the Rome Statute. Article 33 of the Criminal Code provides for four different types of ‘roles’ that may entail criminal responsibility—perpetrator, organizer, instigator and aider—the denitions of which approximate those enunciated in the Rome Statute.99 Arguably, certain advanced forms of criminal cooperation contemplated in Article 35 of the Criminal Code might be taken to reect the concept of ‘common purpose’ envisioned in Article 25(3)(d) of the Rome Statute: they allow for the prosecution of persons who have intentionally contributed to the criminal activity of a group by furthering such activity or who are in knowledge of a group’s intention to commit a crime. Thus, the Criminal Code envisages the commitment of a crime by: i) a group of persons who conspired in advance with regard to the joint perpetration of the crime; ii) an organized group as a stable group of persons who united in advance with the purpose of committing one or more crimes; iii) a criminal organization (association) as a solid organized group (or a confederation of such organized groups) founded with the purpose of committing grave or especially grave crimes.100 However, the Code prescribes that a person may only be charged for a crime committed in cooperation with others when such a possibility is specically foreseen as a constitutive or qualifying circumstance of a particular crime.101 In all other cases, criminal cooperation does not affect qualication but is regarded as an aggravating circumstance and results in an increase of sentence.102 Given that none of the articles of Section XII of the Criminal Code (on Crimes against Peace and Mankind’s Security) contains indication of such a provision, the prosecution of core crimes under the ‘common purpose’ model appears problematic. Therefore, the Criminal Code ought to be amended with the objective of extending its application of the forms of criminal cooperation over the crimes falling within the jurisdiction of the ICC. 98

Articles 28(a)(ii) and 28(b)(iii) of the RS. Cf. Article 25(3)(b–c) of the RS. 100 Article 35 of the CC. 101 Cf. Article 35(5) of the CC. 102 Article 63(1)( ) of the CC. See also Resolution of the Plenary Conference of the Supreme Court Concerning the Practice of Sentencing by the Courts), Resolution no. 40 of 11 June 1999, $#    % "  (Bulletin of the Supreme Court of the Russian Federation) (1999), no. 8, para. 2. 99

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The defences envisaged by the Criminal Code are similar to those formulated by the Rome Statute: ‘necessary self-defence’,103 ‘physical or mental coercion’,104 ‘extreme necessity’105 and ‘execution of order or instruction’.106 Interestingly, the Code treats these defences as justications that do not merely excuse the person from criminal responsibility but decriminalize the act altogether.107 The Rome Statute does not differentiate between justications and excuses and seems to draw no practical consequences from such a distinction.108 In cases of coercion and extreme necessity, the scope of defence is more extensive in the Criminal Code than in the Rome Statute, because the former does not limit their applicability to situations of a threat to life or of bodily harm, as does the latter. The defence of insanity as envisaged in Article 21 of the Code excludes the legal capacity of a person when the intellectual and/or volitional requirements of the mens rea are not satised at the time of the commission of the prosecuted act.109 However, diminished capacity is no defence under the Code unless it caused the perpetrator to be unaware of the criminal character of the conduct or undermined his or her capacity to control it at the time of commission (Article 22 of the Criminal Code). Intoxication, except for cases where it is reasonable to speak of temporary derangement as a result of pathological intoxication, amounting to criminal incapacity,110 is neither defence nor mitigating circumstance under the Code. The same concerns mistake of law. While the Criminal Code contains no provisions covering this issue, doctrine unanimously rejects it as a possible defence (‘ignorantia juris non excusat’).111 Mistake of fact is relevant for sentencing and may be deemed a defence only where it negates the mental element.112 103

Article 37 of the CC; cf. Article 31(1)(c) of the RS. Article 40 of the CC; cf. Article 31(1)(d)(i) of the RS. 105 Article 39 of the CC; cf. Article 31(1)(d)(ii) of the RS. 106 Article 42 of the CC; cf. Article 33 of the RS. 107 Chapter 8 of the CC is entitled ‘Circumstances excluding a criminal character of conduct’; similarly, Articles 37 to 42 explicitly refer to conduct of a non-criminal character. 108 Antonio Cassese, ‘Justications and Excuses in International Criminal Law’, in Antonio Cassese, Paola Gaeta and John R.W.D Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), vol. I, 951–956 at 955. 109 Cf. Article 31(1)(a) of the RS. 110 Cf. Articles 23 and 21(1) CC. 111 See, e.g.: Ninelle F. Kuznetsova and Irina M. Tyazhkova (eds),       . {|$ }' (Course of Criminal Law. General Part) (IKD ‘Zerzalo-M’: Moscow, 2002), vol. 1., chapter X, § 9; Romen R. Galiakbarov (ed.), ~     . {|$ }' (Criminal Law of the RF: General Part) (Saratovskaja Vysschaja Shkola MVD RF: Saratov, 1997) 213-214. 112 Article 28(1) of the CC: ‘An act shall be deemed to be committed innocently if the person who has performed it has not and could not have realized due to the circumstances of the case the social danger of the acts, or has not foreseen the possibility of the onset of socially dangerous consequences and could 104

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The defences laid down in the Criminal Code, which are not included in the Rome Statute, such as ‘iniction of harm during the detention of a person who has committed a crime’ and ‘justied risk’113 could hypothetically be used to justify the crimes in question, even though this is unlikely due to serious restrictions in the formulations of these clauses. For instance, an accused will be unable to invoke the former defences if he or she used disproportionate measures for the detention of a criminal. Likewise, a person is allowed to take a ‘justied risk’ only where the measure in question is deemed to bring about a societal benet (unlikely to be the case for the crimes covered by the Rome Statute), and in any case, any such action will never be justied when it poses a threat to the life of many people, a hazard to the environment or threatens to cause a societal disaster. Pursuant to Articles 31(3) and 21(1)(c) of the Rome Statute, the ICC may consider these grounds at trial if it holds them to be consistent with the Statute, with international law and with internationally recognized norms and standards. Lastly, Article 42 of the Criminal Code formulates ‘superior orders’ as a defence and sets out its necessary elements: (i) an order must be binding on the person, (ii) must not be known to be illegal, and (iii) the person must not commit an intentional crime in pursuance of such an order. In this instance, the Code is generally in line with Article 33 of the Rome Statute. However, in contrast to the Rome Statute, which provides in Article 33(2) that orders to commit genocide and crimes against humanity are manifestly unlawful, the Criminal Code does not enunciate which orders are by denition manifestly unlawful. In the spirit of the presumption of innocence, it is reasonable to conclude that the prosecutor bears the burden of proving, in each case, that the person knew or should have reasonably known that the order was illegal. When an order or instruction is deemed to have been illegal, criminal responsibility is borne by the person who gave the order or instruction.114 When, pursuant to a knowingly illegal order, a subordinate commits an intentional crime, the commission of that crime will be attributed to the superior as the organizer.115 When the harm is occasioned through the negligence of a subordinate, the superior is held to have been the perpetrator.116 Comparing the provision of the Rome Statute and of the Criminal Code on mens rea, one may notice that both texts dene it as including ‘intent’ and ‘knowledge’.117 Under not or should not have foreseen them due to the circumstances of the case’. 113 Articles 38 and 41 of the CC respectively. 114 Article 42(1) of the CC. 115 Article 42(2) of the CC; see also Article 33(3) of the CC (on organizing as a form of complicity). 116 Article 33(2) of the CC. 117 Cf. Articles 25 and 26 of the CC; Article 30 of the RS.

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the Code, criminal prosecution for negligence is only possible when this is specically provided for as the element of crime.118 Insofar as no article of Section XII of the Code (on Crimes against Peace and Mankind’s Security) indicates negligence as a possible form of the mens rea, the crimes in question must be interpreted to be punishable only when intention is established. As stated above, the concept of mistake is not explicitly reected in the Criminal Code but is de facto present in the guise of a norm excluding criminal responsibility for innocently committed acts.119 Both the Constitution and the Criminal Code preclude retroactive criminalization or aggravation of responsibility.120 This prevents Russia, upon becoming a state party to the Statute, from accepting the jurisdiction of the ICC retroactively as of 1 July 2002 (a possibility foreseen under Articles 11(2) and 12(3) of the RS). Since any Russian implementation legislation will have to be enacted and put into effect prior to or at the same time as the ratication of the Rome Statute,121 non-retroactivity will pose no obstacle to the prosecution of crimes within the subject-matter jurisdiction of the ICC. In principle, the statutes of limitation may not hinder prosecution of international crimes. Russia is a party to the 1968 Statutory Limitations Convention,122 and the provisions of the Convention nd reection in Article 78(5) of the Criminal Code which holds that statutes of limitation shall not apply to crimes against peace and mankind’s security found in Articles 353 and 356 to 358 of the Code.123 However, because crimes against humanity are not envisaged separately in the Code, crimes that substantively constitute this category (for example, murder and rape) are governed by standard time limitations.124 The applicability of a limitation period to a person who has committed a crime punishable with the death penalty or life imprisonment (for example, rst degree-murder) is left to the discretion of the national court.125

118

Article 24(2) of the CC. Article 28 of the CC. 120 Article 54(1) of the Constitution; Article 10(1) of the CC. 121 Supra note 5 and accompanying text. 122 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, New York, 26 November 1968, in force on 11 November 1970, ratication (USSR) 22 April 1969, 754 United Nations Treaty Series 73. 123 Respectively: ‘Planning, Preparing, Unleashing, or Waging of Aggressive War’, ‘Use of Banned Means and Methods of Warfare’, ‘Genocide’, and ‘Ecocide’. 124 Ten years for ‘grave crimes’ and fteen years for ‘especially grave crimes’, Article 78(1) of the CC. 125 Article 78(4) of the CC. 119

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4. Preconditions for the Exercise of Jurisdiction Once the Statute is ratied, the division of labour between the Court and Russian judiciary will be shaped depending on the treatment under Russian law of issues relevant for the Court’s decision to exercise or to decline its complementary jurisdiction, and on the legal consequences of the proceedings before the Court for the further handling of the case in the domestic jurisdiction. In this context, the rule of non bis in idem, the irrelevance of the ofcial capacities and immunities, as well as the issue of amnesties deserve attention. As to the issue of non bis in idem,126 both the Constitution and the Criminal Code stipulate that no one may be punished twice for the same crime. 127 Similarly, the newly adopted Criminal Procedure Code clearly holds that repeated prosecution for the same crime is precluded.128 Prior conviction for a ‘core crime’ precludes further judicial consideration of any element that is encompassed within the prosecuted crime, even when such an element is separately criminalized under national law. It is self-evident, however, that if a person is acquitted by the ICC due to a failure to meet the threshold envisaged in Articles 6 to 8 of the Rome Statute, this would not bar a domestic prosecution on separate charges for the underlying ordinary crimes arising from the same facts.129 Considering the principle of irrelevance of immunities as a bar to the Court’s exercise of jurisdiction envisaged in Article 27(2) of the Statute, one can recognize in Russian law numerous provisions on immunities from criminal prosecution and special procedural rules attaching to certain individuals with an ofcial status. Generally, immunity under national law implies that the ofcials concerned may not be detained, arrested or indicted by competent national authorities, nor may their premises be searched, unless their immunities have been duly lifted. Special procedures exist for commencing criminal prosecutions against the following ofcials: 1) the President of the Russian Federation,130 any former presidents131 and registered candidates for the presidency;132 126

For an analysis of the non bis in idem principle and an overview of the case law of the Russian Constitutional Court on this issue, see Boris Andreev, ‘Non bis in idem principle in international and Russian law’, 73 International Review of Penal Law (2002) 1065-1071. 127 Article 50(1) of the Constitution; Article 6(2) of the CC. 128 See Article 27(1)(4) of the CPC. 129 Article 27(1)(4) of the CPC envisages that only a charge identical to the one on which the person has been prosecuted before is a ground for discontinuance of criminal proceedings. 130 Articles 91 and 93 of the Constitution. 131 Article 3(1)(5) of the Federal Law on Safeguards of the Resigned President of the Russian Federation and Members of his Family, Law no. 12-FZ of 12 February 2001, SZRF (2001), no. 7, article 617. 132 Article 42(6) of the Federal Law on Elections of the President of the Russian Federation, Law no.

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2) members of the Federal Assembly, deputies of legislative organs of the subjects of Russian Federation, members of elective bodies or elective ofcials of organs of local self-government;133 3) judges;134 4) the Ombudsman;135 5) members of the Accounting Chamber;136 6) the Prosecutor General and all prosecutors;137 7) advocates;138 8) investigators;139 9) and members of election commissions and members of referendum commissions with the right to vote.140 Article 448 of the CPC establishes an elaborate set of procedural rules for bringing the above-listed categories of persons, with an exception of the acting President, to justice. The legal basis of the immunities and the scope of protections accorded vary. Relevant provisions on the status of the President, members of the Federal Assembly and judges are enshrined in the Constitution, granting these ofcials full inviolability and, consequently, a most extensive range of protections possible. The existence of procedures for waiving constitutional immunities in cases of criminal conduct demonstrates nonetheless that these immunities are not insurmountable and are not in conict with the obligations under the Rome Statute per se.141 19-FZ of 10 January 2003, SZRF (2003), no. 2, article 171, last amended on 30 December 2006. 133 Article 98(1) of the Constitution; Articles 19(1) and 20 of the Federal Law on the Status of Members of the Council of Federation and Deputies of the State Duma of the Federal Assembly of the Russian Federation, Law no. 133-FZ of 5 July 1999, SZRF (1994), no. 2, article 74; Article 448(1)(1) of the CPC. 134 Article 122 of the Constitution; Article 16 of the Law on the Judicial System; Article 16(1) of the Law on the Status of Judges in the Russian Federation, Law no. 3132-I of 26 June 1992,  & ' 

 +%  "        %        (Gazette of the Conference of Peoples’ Deputies and of the Supreme Council of the Russian Federation) (1992), no. 30, article 1792, last amended 5 April 2005, hereinafter ’Law on Status of Judges’. 135 Article 12(1) of the Federal Constitutional Law on the Ombudsman of the Russian Federation, Law no. 1-FCZ of 26 February 1997, SZRF (1997), no. 9, article 1011. 136 Article 29(1)(3) of the Federal Law on the Accounting Chamber of the Russian Federation, Law no. 4-FZ of 11 January 1995, SZRF (1995), no. 3, Article 167, last amended on 25 July 2006. 137 Article 42(1)(6) of the Federal Law on the Prosecutor’s Ofce of the Russian Federation, Law no. N 2202-1 of 17 January 1992,  & '   +%  "        %  

     (Gazette of the Conference of the People’s Deputies of the Russian Federation and the Supreme Council of the Russian Federation) (1992), no. 8, article 366, last amended on 4 November 2005. 138 Article 18(2) of the Federal Law on Advocacy and the Bar in the Russian Federation, Law no. 63-FZ of 31 May 2002, SZRF (2002), no. 23, article 2102, last amended on 20 December 2004. 139 Article 447(1) of the CPC. 140 Article 29(18) of the Federal Law on Basic Guarantees of Voting Rights and the Right to Participate in Referendum of the Citizens of the Russian Federation, Law no. 67-FZ of 12 June 2002, SZRF (2002), no. 24, article 2253, last amended on 30 January 2007. 141 Helen Duffy and Jonathan Huston, ‘Implementation of the ICC Statute: International Obligations and Constitutional Considerations’, in Claus Kress and Flavia Lattanzi (eds), The Rome Statute and Domestic

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The President of the Russian Federation, as the Head of State, enjoys absolute immunity, which may nevertheless be waived through impeachment. The decision on impeachment is made by the Federation Council within three months after the charges of high treason or other grave crimes142 are put forward by the State Duma and conrmed by a ruling of the Russian Supreme Court and further, by a conclusion of the Constitutional Court establishing that the procedure for bringing charges has been observed.143 Immunities of judges and members of the Federal Assembly can be lifted by the competent authorities with regard to any type of crime. For instance, according to Article 16(3) of the Law on Status of Judges, the immunity of a judge of the Supreme Court from criminal prosecution may be waived by the Prosecutor General, based on a nding of indicia of crime by the bench of three judges of that court, consented to by the Higher Collegium of Judges. Members of the Federal Assembly enjoy immunity from criminal prosecution only with regard to crimes allegedly committed in the course of their activity as members of parliament; this immunity may be lifted by the Prosecutor General, on the basis of a ruling of a collegium of three judges of the Supreme Court, approved by a decision of the respective chamber of the Parliament.144 Immunities of other categories of persons are prescribed in federal laws that accord protections of a more restricted character and may with greater facility be waived by competent organs for the purposes of criminal prosecution. For instance, the immunity of prosecutors, investigators, advocates, judges and members of the Accounting Chamber may be waived by the Prosecutor General or competent (superior) prosecutor, sometimes acting on the basis of the judicial nding of indicia of crime, for example by district judges in the case of advocates and prosecutors.145 As to the immunities under international law, Article 11(4) of the Criminal Code rules that the question of criminal responsibility of diplomatic representatives and other persons enjoying immunity must be settled in accordance with international law. Russia is a state party to a number of international conventions granting diplomatic and consular immunities.146 Upon ratication of the Statute, the obligations to respect Legal Orders (Nomos Verlagsgesellschaft: Baden Baden, 2000) vol. II, 27-49 at 40. 142 Article 15 of the CC categorizes as ‘grave’ those intentional crimes for which the prescribed maximum penalty ranges from ve to ten years of imprisonment. ‘Core’ crimes will easily meet this threshold, as most of them will fall into the category of ‘especially grave’ crimes (cf. Articles 356 and 357 of the CC). 143 Article 93 of the Constitution. 144 Article 98 of the Constitution. 145 Article 448(1) of the CPC. 146 Convention on the Privileges and Immunities of the United Nations, New York, 13 February 1946, in force 17 September 1946, accession (USSR) 22 September 1953, 1 United Nations Treaty Series 15; Convention on the Privileges and Immunities of the Specialized Agencies, New York, 21 November

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the immunities prescribed under these conventions will remain unchanged, unless the Court can obtain the cooperation of the third state for the waiver of immunity, in accordance with Article 98(1) of the Rome Statute. As regards amnesties, these are within the discretion of the State Duma and are not limited to any category of crimes.147 Details concerning amnesties are stipulated in the relevant legislation. One pertinent example is the amnesty regulation of 6 June 2003 passed on the occasion of the adoption of the Constitution of the Chechen Republic that aimed at the promotion of social peace and consensus. By means of the regulation, the Duma amnestied certain categories of crimes committed during armed conict and counter-terrorist operations in Chechnya. The general pardon extended to persons who had voluntarily ceased their participation in illegal armed units or handed over weapons (except for foreign citizens and stateless persons) as well as federal servicemen who had committed crimes during the conict.148 It is worth noting that in contrast to a previous amnesty decree on this issue,149 genocide was excluded from the list of crimes to which the amnesty applied. However, no such exclusion was made in respect of war crimes.

5. Offences against the Administration of Justice The Criminal Code contains a set of provisions aimed at protecting the integrity and administration of justice, which cover the acts proscribed under Article 70(1) of the Rome Statute.150 At the time of the ratication of the Rome Statute, it will be necessary 1947, in force 2 December 1948, accession (USSR) 10 Jan 1966, 33 United Nations Treaty Series 261; Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, in force 24 April 1964, ratication (USSR) 25 March 1964, 500 United Nations Treaty Series 95; Vienna Convention on Consular Relations and Optional Protocol, Vienna, 24 April 1963, in force 19 March 1967, accession (USSR) 15 March 1989, 596 United Nations Treaty Series 262. 147 Article 103 of the Constitution; Article 84 of the CC. 148 Regulation of the State Duma no. 4125-III GD of 6 June 2003 (proclamation of amnesty in connection with adoption of the Constitution of the Chechen Republic), SZRF (2003), no. 24, article 2293. 149 Regulation of the State Duma no. 4784-II GD of 13 December 1999 (proclamation of amnesty in respect of persons who committed socially dangerous acts during antiterrorist operations in the Northern Caucasus), SZRF (1999), no. 51, article 6325. 150 E.g. Article 307 of the CC (on intentional provision of false testimony, opinion of an expert or specialist, deliberate mistranslation), cf. Article 70(1)(a) of the RS; Article 303 of the CC (on forgery), cf. Article 70(1)(b) of the RS; Article 309 of the CC (on tampering with a witness or compulsion to give or to avoid giving witness testimony, an expert opinion or translation), cf. Article 70(1)(c) of the RS); Article 294 of the CC (on obstruction of the administration of justice and of the conduct of preliminary investigation), cf. Article 70(1)(d) of the RS; Article 295 of the CC (on encroachment on the life of the

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to extend the operation of norms designed to protect the domestic judicial system to crimes targeted against the delivery of justice by the ICC.151

6. Discretion of the Prosecution The consent of the Prosecutor General or of any political institution is not required for initiating prosecution of the crimes in issue. However, for overcoming existing immunities of certain state ofcials and public gures, a special regime exists, which is to be applied prior to the institution of criminal proceedings against these persons.152 The principle of mandatory prosecution applies to the crimes covered by the Rome Statute, which means that the commencement of criminal proceedings is an obligation of the respective ofcials.153 Both the decisions to commence and not to commence criminal proceedings may be appealed to a competent prosecutor or to a district court.154 Pre-trial investigation is possible in absentia of the suspect, but it must be suspended after all necessary investigative and detective measures have been undertaken within the prescribed time.155 While the accused must be present in Russia for the trial to commence, there are no residence requirements for being subjected to prosecution.

III. Legal Basis for Cooperation with the ICC 1. Implementation of the Duty to Cooperate in General In contrast to the substantive criminal law, the rules of international law affecting criminal procedure may be directly applicable in the Russian legal order.156 For this person administering justice or preliminary investigation when committed to retaliate for such activity), cf. Article 70(1)(e) of the RS. The crime of soliciting or accepting a bribe (Article 70(1)(f) of the RS) is punishable under article 290 of the CC. 151 This requirement stems from Article 70(4)(a) of the RS. 152 Envisaged in Article 448 of the CPC. For details see section II.4. 153 Article 20(5) of the CPC (on this category of crimes); Article 21(2) of the CPC (providing for an obligation of the authorities to investigate ’[i]n every case when signs of crime are revealed’); also see Articles 144(1) and 146 of the CPC. 154 Articles 124 and 125 of the CPC. 155 Article 208(1)(5) of the CPC. For the terms of investigation see Article 162 of the CPC. 156 See infra, section I.3. Also see article 457(2) of the CPC: ‘In the execution of the request the norms of this Code apply; however, procedural norms of a foreign state may apply in accordance with the international treaties of the Russian Federation, international agreements or on the basis of the reciprocity principle, if

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reason, self-executing provisions of Part 9 of the Rome Statute will be directly applicable in Russia automatically upon ratication of the Rome Statute. Yet, most of the provisions of Part 9, given that they are non-self-executing, require adoption of special enforcement mechanisms, be it in a separate law, as a part of the ratication bill, or as a set of amendments to the Criminal Procedure Code, before they become applicable in Russia. Russian legislation does not lay down any procedures on cooperation with international criminal justice organs.157 Provisions on inter-state cooperation in criminal matters are contained in Part Five of the Criminal Procedure Code.158 Russia is also a party to a number of bilateral159 and multilateral treaties160 which regulate inter-state cooperation in criminal matters. However, these agreements can only serve as a limited procedural model for legislation designed to implement the provisions of the Rome Statute on cooperation with the ICC – after all, the cooperation procedure under the Statute grants much less discretion to a state in deciding whether to cooperate or not, and is far more elaborate and detailed.

2. General Recognition of the Court There are no insurmountable legal hindrances in the existing national legislation with respect to the recognition of the jurisdiction of the ICC or of the validity of its judgments. While Russian legislation does not expressly recognize the jurisdiction of international criminal judicial organs,161 once the Rome Statute is ratied, this does not contradict the legislation and international obligations of the Russian Federation’. 157 The only provision on cooperation with the UN tribunals is contained in an Executive Order (supra note 3), which simply lists the organs responsible for such cooperation (Ministry of Foreign Affairs, Ofce of the Public Prosecutor General, Ministry of Justice and Ministry of Internal Affairs). 158 Articles 453 to 473 of the CPC. 159 For instance, Treaty between the Russian Federation and Canada on Mutual Legal Assistance in Criminal Matters, Moscow, 20 October 1997, ratication 27 May 2000, in force 18 December 2000, $#   & <" +%   (Bulletin of International Treaties), 2001, no. 5, p. 64-72 and a number of others. 160 For instance, the Commonwealth of Independent States Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, Minsk, 22 January 1993, in force 19 May 1994, ratication 4 August 1994, Bulletin of International Treaties, 1995, no. 3, p. 3-28, as amended by the Protocol of 28 March 1997 to the Convention,     <   $#  # +=  >   < " (Special Appendix to Bulletin of the Supreme Arbitrage Court of the Russian Federation) (1999), no. 3 (CIS Convention); European Convention on Extradition, 13 December 1957, in force 18 April 1960, ratication 10 December 1999, Council of Europe Treaty Series no. 24; European Convention on Mutual Assistance in Criminal Matters, Strasbourg, 20 April 1959, in force 12 June 1962, ratication 10 December 1999, Council of Europe Treaty Series no. 30, and others. 161 Article 31 of the CPC.

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the jurisdiction of the ICC will be recognized by virtue of the self-executing nature of the Statute’s provisions envisaging delegation to the Court of adjudicatory jurisdiction by states, and due to the principle of primacy of international treaties over national legislation governing criminal procedure.162 At the same time, the Criminal Procedure Code states that ‘a defendant cannot be deprived of the right for his case to be judged by that judge and by that court, which has a jurisdiction as dened by this Code’.163 Thus, to avoid confusion in the interpretation of this provision, it is advisable to make an express reference to the jurisdiction of the Court in the Criminal Procedure Code. According to the Law on the Judicial System, the binding nature of decisions of international courts shall be determined by international treaties of the Russian Federation.164 Thus, the binding character of the ICC’s judgments will be recognized automatically upon the ratication of the Rome Statute. Concerning the possibility of the ICC to sit on the territory of the Russian Federation, amendments to Russian legislation might be needed. According to the Constitution165 and the Law on the Judicial System,166 adjudicatory functions on the territory of the Russian Federation can only be performed by courts established by the Constitution and the above-mentioned law. Insofar as the ICC is not part of the judicial system of Russia, amendments to the Law on the Judicial System might be needed to integrate it into the system of courts competent to render criminal justice.167 This would also allow the ICC to perform ad hoc adjudicatory functions on the Russian territory as envisaged in the Rome Statute.

3. Specic Forms of Cooperation As mentioned above, there are virtually no provisions in Russian legislation on cooperation with international judicial bodies. All legislative norms on cooperation in criminal matters relate to a foreign state as a counterpart. The provisions for inter-state cooperation in criminal matters laid down in the Part Five of the Criminal Procedure Code may serve as a basic framework for various forms of cooperation with the Court, with some important additions and amendments, as discussed below. 162

Article 1(3) of the CPC. Article 8(2) of the CPC (emphasis added). 164 Article 6(3) of the Law on the Judicial System. 165 Article 118 of the Constitution. 166 Articles 1 and 4(1) of the Law on the Judicial System. 167 For an identical proposition, see Tuzmukhamedov, ‘The ICC and Russian Constitutional Problems’, supra note 6, at 624. 163

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The Criminal Procedure Code does not regulate the contents of requests for legal assistance sent to the Russian Federation by foreign states. The requirements to such requests, however, are provided for in international treaties to which Russia is a party.168 Thus, it may be inferred that in relations between the Russian authorities and the ICC, Article 96 of Rome Statute, which deals with the contents of requests for assistance, could be applied directly and that the execution of the request is not likely to be impeded or delayed on formal grounds. The Criminal Procedure Code contains a procedural framework for the execution of most forms of cooperation envisaged in Article 93(1) of the Rome Statute, except for facilitating the voluntary appearance of persons as witnesses or experts before the ICC and the temporary transfer of persons in custody.169 Thus, special procedures should be envisaged in the implementation legislation to ensure effective cooperation on these issues. The grounds for a denial of execution of a request for inter-state assistance in the Criminal Procedure Code are similar to those provided for in Article 93(3) and (4) of the Rome Statute, though the former are slightly wider. Under the Code, a request may be denied if it contradicts Russian law, whereas the Rome Statute speaks of ‘existing fundamental legal principle of general application’; a request may also be denied if it threatens national sovereignty and security, while the Statute only mentions ‘national security’.170 Hence, it is important that the exact formulation of the Rome Statute is reected in the implementing legislation. There are a number of provisions in the existing legislation on inter-state cooperation in criminal matters that, if applied to requests for cooperation by the ICC, might cause some delay or impede the execution of such requests. For instance, extradition may be delayed if there is a pending investigation of another crime for which the same person is a suspect. Similar rule applies if a person sought for extradition is serving a criminal sentence in the Russian Federation.171 Besides that, the transfer of material objects might be delayed, if these objects are needed for the purposes of a pending criminal investigation.172

168

See in particular Article 14 of the European Convention on Mutual Legal Assistance in Criminal Matters, supra note 160 and Article 50 of the CIS Convention, ibid. 169 Cf., respectively, Article 93(1)(e–f) of the RS. 170 Article 457(4) of the CPC. 171 Article 465 of the CPC. 172 Article 468(2) and (3) of the CPC.

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4. Requests for Arrest and Surrender The potential effectiveness of cooperation with the Court should be evaluated in the context of the question of whether Russian law at present poses any obstacles to the arrest and surrender on the request of the Court as basic modalities of cooperation. Thus, the provisions of national law that have proved to be commonly problematic with respect to this form of cooperation are overviewed below, such as the (ban on) deportation and extradition; ne bis in idem; immunities and the possibility of the life imprisonment imposed by the ICC under Article 77(1)(b) of its Statute. Article 61 of the Constitution prohibits the deportation and extradition of Russian citizens to another state. At this early stage, it is problematic to predict whether this constitutional provision would be considered a barrier to the ratication of the Rome Statute. As the option of amending Article 61 of the Constitution will hardly be seriously considered in the ratication process,173 the most realistic way to overcome the ambiguity would be by means of a ‘liberal’ constitutional interpretation. This would involve viewing the provision in question as applying only in cases of extradition of persons to other states, but not surrender to organs of international justice.174 Notably, an interpretation in the same vein was given by the Constitutional Court of Ukraine in 2001, which made amending the Constitution on this point unnecessary.175 Some support for this view may also be found in the literature. For instance, an authoritative commentary on the Russian Constitution states that ‘extradition’ within the meaning of Article 61 means ‘delivery of a person by the state, on the territory of which this person is present, to another state, for the purpose of criminal conviction or execution of the criminal sentence’.176 As to the ban on deportation of citizens, another commentary speculates that the drafters’ primary intention in relation to Article 61(1) of the Constitution was to forbid the expulsion of nationals from the country under the guise of criminal punishment for dissidence, which was a common practice during the Soviet period.177 Thus, both textual and teleological analyses of Article 61(1) of the Con173

See supra, section I.2. This interpretation would be in consonance with the use of terms in Article 102 of the RS. 175 See Second Report by Co-Rapporteur Professor Göran Sluiter, Toronto Conference (2006), Committee on International Criminal Court, International Law Association, <www.ila-hq.org/pdf/International%2 0Criminal%20Court/Report%202006.pdf> (visited 12 December 2006), at 3. 176 Lev A. Okun’kov (ed.), @  + !&&    ! " (An Article-by-Article Commentary to the Constitution of the Russian Federation) (BEK: Moscow, 1994) at 264 (translation by the authors, emphasis added). 177 V.D. Karpovich (ed), @  + &&    ! "      (Article-by-article Commentary to the Constitution of the Russian Federation (Jurait: Moscow, 2002), comment on Article 61. 174

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stitution may show that surrender of a citizen to an international judicial body, whose jurisdiction has been recognized by Russia, cannot be considered deportation. Russian law does not generally prohibit the extradition of non-Russian citizens. It is allowed when in accordance with international treaties of the Russian Federation on inter-state cooperation in criminal matters or on the basis of the principle of reciprocity.178 However, the Criminal Procedural Code imposes certain conditions on the execution of a request to surrender a person to another state, such as: (i) the alleged conduct must be a crime under Russian law and punishable in Russia with more than one-year imprisonment; (ii) the foreign state must guarantee that the person will be prosecuted for only those crimes that are mentioned in the request, nor surrendered to a third state or deported without Russia’s consent; (iii) the person whose surrender is requested must not have been granted political asylum in Russia due to discrimination.179 Assuming that crimes under the jurisdiction of the ICC will be fully implemented in Russian criminal law, and bearing in mind that Article 101 of the Rome Statute expressly curtails the possibility of charging the person with offenses other than those for which he or she is surrendered, the rst two grounds would not present a problem for the execution of the request. However, the third might preclude the execution of the Court’s request for surrender if applied to the regime of cooperation with the Court. In addition, a number of requirements imposed by the Criminal Procedure Code may impede or delay the execution of the Court’s requests for surrender, for instance the possibility to appeal decisions of the Prosecutor General or the Deputy Prosecutor General on extradition to a regional court and the ban of provisional arrest before a request for extradition has been received.180 It would be advisable to specify in the Criminal Procedure Code that the above-mentioned provisions do not apply in cases of surrender of a person to the ICC. According to Russian law, arrest warrants can only be issued by a court.181 Every arrested person may contest the grounds of the arrest in an appellate instance or apply to a court for an interim release.182 Interim release can be granted if the detention of a person as a preventive measure is not required anymore, taking into account such circumstances as the seriousness of the charges, damages incurred, personal characteristics of the accused, his previous criminal record, his health conditions, family status.183 178

Article 462(1) and (2) of the CPC. Articles 462 and 464 of the CPC. 180 Article 463 of the CPC. 181 Article 108(1) of the CPC. 182 Respectively, Articles 108(11) and 110 of the CPC. 183 {"     € `  ‚   ‘{         "       "\}$   ’ (Review of Judicial Practice of the Supreme Court of the Russian Federation ‘On the Practice of Judicial Review of the Legality and Expediency of Arrest 179

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Thus, national legislation contains wider grounds for interim release than Article 59(4) of the Rome Statute. Hence, it is preferable that the implementing legislation expressly states that only the grounds contained in Article 59(4) of the Rome Statute ought to be taken into account when an issue of interim release is considered, pending the surrender of a suspect to the ICC. Under Russian law, arrest is the most severe measure of restriction and may be applied only in cases of serious crimes and if no lighter measure is available.184 However, no contradiction can be found between this provision and the norm of the Rome Statute providing for detention by default in arrest proceedings in the custodial state, bearing in mind the exceptional gravity of crimes within the jurisdiction of the ICC.185 According to national criminal procedure legislation, a person may challenge a decision on arrest and extradition on ne bis in idem grounds. A decision to extradite would be held illegal if the person concerned had already been convicted for the same conduct by a Russian court or if criminal prosecution had been terminated.186 There is no provision providing for the postponement of surrender of the arrested person pending a ruling on the challenge of an extradition decision. Immunities attached to certain classes of state ofcials by domestic law, but short of a constitutional status, would not pose a serious obstacle to cooperation with the ICC. Once the Rome Statute is ratied, the obligation under Article 89(1) of the Statute to comply with the request for arrest and surrender will trump these immunities due to the special position of international treaties in the Russian legal system.187 However, the need to ensure legal certainty suggests inclusion in the respective federal legislation of an explicit declaration on the inapplicability of procedural privileges in cases at issue. The immunities of the President, members of the Federal Assembly and judges, which enjoy a constitutional status, appear more problematic. The existing mechanism for lifting these immunities—by a decision of a collegium of judges, approved by the parliament, which is not subject to review—bears the risk to prove ineffective in politically sensitive cases. Arguably, amending the respective constitutional rules would be desirable with a view to legal certainty and promoting an ever more effective cooperation regime, in the bona de implementation of the duty under Article 88 of the Rome Statute. Such amendment might, for instance, allow for automatic inapplicability of and Extension of Detention’), $#    % "      (Bulletin of the Supreme Court of the Russian Federation) (1993), no. 9 at 6. 184 Article 108(1) of the CPC. 185 See Article 99 of the CPC, which provides that the gravity of the alleged crime is to be taken into account when choosing a measure of restriction. 186 Article 464(3) of the CPC. 187 See supra note 26 and accompanying text.

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the constitutional immunity rules in case of a pending request for surrender to the ICC of a concerned ofcial. Compared to any of the articles of Chapter 2, amendments to Articles 91, 98 and 122 on immunities can be introduced under a considerably simpler, yet burdensome, procedure: by a two-thirds majority of the State Duma and a three-quarters majority of the Federation Council, with an approval by no less than two-thirds of regional legislative organs.188 Given high political sensitivity of this issue, the introduction of such a constitutional amendment appears an arduous task at this stage. One may also wonder whether introducing such reform will in fact be considered in the process of preparation for ratication, as far as it is presumed that Russia is willing to genuinely prosecute its highest ofcials suspected of having committed a criminal offence in accordance with the established procedure. Considering this, a ‘middle-ground’ approach, which argues that the existing mechanism of lifting the immunities enshrined in the Constitution is by and large sufcient to guarantee Russia’s cooperation with the Court, appears optimal.189 As to the issue of the life penalty, national legislation does not contain any limitations on extradition in relation to the ultimate term of imprisonment or the harshness of the sentence for the extraditable crime. Thus, the fact that the ICC may impose life imprisonment or imprisonment for up to 30 years (Article 77(1) of the Rome Statute) would not appear an obstacle to the execution of a request for surrender by the Russian Federation.

IV. Conclusion By and large, the Russian legislation is compliant with the principles underlying the provisions of the Rome Statute. In the authors’ view, the constitutional prohibition of extradition and deportation of citizens does not constitute an insuperable barrier to the ratication of the Rome Statute, as it may be overcome by means of an interpretation of the Constitution by the Constitutional Court. The problematic issue of immunity, which is often raised in connection with possible ratication of the Rome Statute, ought to be addressed in the course of changing the ordinary legislation. In general, it must be noted that domestic constitutional legislation, even in its present state, does not contain critical obstacles for ratication of the Rome Statute. 188

Articles 108 and 136 of the Constitution. Cf. supra note 11 and accompanying text. On the like treatment of this politically sensitive matter, see Matthew S. Carlson, ‘The International Criminal Court: Selected Considerations for Ratication and National Implementing Legislation’, 72 International Review of Penal Law (2001) 783-807 at 799-800. 189

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However, a set of amendments to be introduced into the Criminal Code, Criminal Procedure Code, and laws regulating the organization of the judiciary and the lawenforcement bodies will be necessary in order to ensure the ability to prosecute duly all crimes under the court’s jurisdiction and to specify the mechanism of cooperation of the law-enforcement authorities with the ICC. Particularly, an obvious gap that has to be lled is that Russia’s substantive criminal law lacks a concept of command responsibility. A major omission of the Criminal Code is that it does not fully criminalize war crimes and crimes against humanity, the ‘core crimes’ of the subject-matter jurisdiction of the ICC, despite Russia’s prior participation in international instruments designed to combat these crimes. It is possible to infer that the thorough transformation of substantive international criminal law into domestic criminal law norms is an implementation model preferable to the current incorporation of international law via rules of reference contained in the Russian Criminal Code. In conclusion, the ratication of the Rome Statute by the Russian Federation would substantially advance the implementation of norms and standards of international criminal and humanitarian law under the Russian legal order, thereby serving as a benchmark for the progressive development of Russian criminal law.

Implementation of the Rome Statute in the United Kingdom Simon P. Olleson and Matthew R. Brubacher**

I. Introduction The United Kingdom signed the Rome Statute on 30 November 1998 and ratied it on 4 October 2001. The government took the view that legislation should be put in place prior to ratication. Accordingly legislation was produced and introduced in Parliament with the aim of fullling all of the United Kingdom’s obligations under the Rome Statute. The principal piece of legislation is the International Criminal Court Act 2001 (the ‘ICC Act 2001’), which received the royal assent on 11 May 2001 and was brought into force on 1 September 2001.1 The ICC Act 2001 applies in its entirety to England and Wales and Northern Ireland;2 in addition, a large proportion of the provisions on co-operation also apply to Scotland.3 Those provisions that do not apply to Scotland are the subject of separate legislation passed by the Scottish Parliament—the International Criminal Court (Scotland) Act 20014 (the ‘ICC (Scotland) Act 2001’)—in substantially similar terms, although

M.A. (Cantab.), LL.M. (NYU), Dip. Int. L. (Cantab); Barrister, 13 Old Square, London. LL.M. in Public International Law (London School of Economics), BSFS (Georgetown), PgDL (College of Law). The authors would like to express their thanks to Dr. R.M. O’Keefe of Magdalene College, Cambridge for his kind assistance in reviewing the text of this report. 1 International Criminal Court Act 2001 (Commencement) Order 2001, S.I. 2001/2161, 13 June 2001. Certain provisions of the Act entered into force on 13 June 2001: see ibid., Art. 3; see also the International Criminal Court Act 2001 (Commencement) (Amendment) Order 2001, S.I. 2001/2304, 25 June 2001. 2 The application of some provisions by their terms are expressly limited to either England and Wales or Northern Ireland. 3 For the exact division in relation to the co-operation provisions, see Sec. 79(1), ICC Act 2001, and see further infra note 73 and accompanying text. The ICC Act may also be extended by Order in Council to the Channel Islands, the Isle of Man or any colony: Sec. 79(3), ICC Act 2001. 4 The ICC (Scotland) Act 2001 was brought into force on 17 December 2001: see the International Criminal Court (Scotland) Act 2001 (Commencement) Order 2001, S.S.I. 2001/456, 10 December 2001. **

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with minor changes to take account of the different procedures and terminology of the Scots legal system. The two acts put in place the procedures necessary in order to full the United Kingdom’s obligations of co-operation under the Rome Statute. Part 5 (Sections 5074) of the ICC Act 2001 makes the core crimes domestic offences in England and Wales5 and Northern Ireland6 in accordance with the principle of complementarity, as well as extending domestic offences against the administration of justice to cover offences against the ICC in order to full the UK’s obligations under Article 70 of the Rome Statute.7 The ICC (Scotland) Act 2001 criminalizes the same offences in relation to Scotland.8 In accordance with the general position under British law, treaties must be incorporated into domestic law before having any effects.9 Further, legislation implementing international obligations has no particular special status. A subsequent statute can repeal any legislation, including legislation incorporating international obligations. However it must do so sufciently clearly, as legislation will be interpreted as far as possible to conform with the United Kingdom’s international obligations.10 As the ICC Acts are expressly intended to implement the Rome Statute, reference may be had to the travaux preparatoires by the courts in case of any ambiguity.11

II. Complementarity 1. General Principles of Jurisdiction The criminalization of the core crimes under the ICC Act 2001 and the ICC (Scotland) Act 2001 is based principally on the basis of the territoriality of offences,12 with extraterritorial jurisdiction asserted in relation to acts committed outside the United Kingdom by ‘a United Kingdom national, a United Kingdom resident or a person subject to UK 5

Sec. 51, ICC Act 2001. Sec. 58, ICC Act 2001. 7 Sec. 54, (England and Wales) and Sec. 61, (Northern Ireland) ICC Act 2001. 8 Secs 1 and 4, ICC (Scotland) Act 2001. 9 See e.g. Maclaine Watson v. Department of Trade and Industry [1989] 3 All ER 523 (H.L.), at 544-545 per Lord Oliver. 10 See e.g. Salomon v. Commissioners of Customs and Excise [1967] 2 QB 116. 11 See e.g. Fothergill v. Monarch Airlines [1981] AC 251 (H.L.). 12 Sec. 51(2)(a) (England and Wales) and Sec. 58(2)(a) (Northern Ireland), ICC Act 2001; Sec. 1(2)(a), ICC Act (Scotland) 2001. 6

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service jurisdiction’.13 The extra-territorial assertion of jurisdiction over nationals,14 and persons serving in the military forces of the United Kingdom are unexceptionable, as is the exercise of jurisdiction over acts committed by persons resident in the UK at the time the relevant acts are committed. However, to the extent that the Act expressly extends jurisdiction over persons with no connection to the United Kingdom at the time the act in question was committed but who subsequently take up residence in the United Kingdom,15 the assertion of jurisdiction seems, at least implicitly, to be based on a recognition of universal jurisdiction, albeit of a tightly circumscribed nature.16

2. Core Crimes The denitions of the core crimes have been directly transposed into British law by reference to Articles 6 to 8 of the Rome Statute.17 Each of the core crimes has been made an offence under British law.18 In interpreting and applying the denitions contained in the Statute, a court must take into account the Elements of Crimes,19 and any relevant judgment or decision of the ICC;20 account may also be taken of any other relevant

13 Sec. 51(2)(b), ICC Act 2001 (England and Wales). See also Sec. 58(2)(b), ICC Act 2001, for Northern Ireland and Sec. 1(2)(b), ICC Act (Scotland) 2001, in similar terms, although omitting the reference to persons subject to UK Service jurisdiction. ‘[A] person subject to UK service jurisdiction’ is dened in Sec. 67(3), ICC Act 2001, and covers all members of the Armed Forces and a few special categories of civilians. 14 The term ‘UK national’ is dened widely: see Sec. 67(1), ICC Act 2001; Sec. 6(1), ICC (Scotland) Act 2001. 15 Sec. 68, ICC Act 2001, Sec. 6 ICC (Scotland) Act 2001. A ‘UK resident’ is dened simply as ‘a person resident in the United Kingdom’: see Sec. 67(2), ICC Act 2001, Sec. 28(1), ICC (Scotland) Act 2001. 16 See further Robert Cryer, ‘Implementation of the International Criminal Court Statute in England and Wales’, 51 International and Comparative Law Quarterly (2002) 733–743 at 742. 17 Secs 50(1) and Schedule 8, ICC Act 2001; Sec. 1(4) and Schedule 1, ICC (Scotland) Act 2001. 18 Sec. 51(1) (England and Wales), and Sec. 58(1) (Northern Ireland), ICC Act 2001; Sec. 1(1), ICC (Scotland) Act 2001. 19 Sec. 50(2), ICC Act 2001; Sec. 9(2), ICC (Scotland) Act 2001. The Secretary of State is required to set out the Elements of Crimes in regulations (Sec. 50(3), ICC Act 2001); initially, the International Criminal Court Act 2001 (Elements of Crimes) Regulations 2001, S.I. 2001/2505, 10 July 2001 set out the Elements of Crimes contained in the PrepCom report of 30 June 2000. Subsequently, that regulation was replaced by regulations scheduling the (identical) Elements of Crimes adopted by the Assembly of States Parties on 9 September 2002 (UN Doc. ICC-ASP/1/3, at 108) (see the International Criminal Court Act 2001 (Elements of Crimes) Regulations 2004, S.I. 2004/1880, 9 March 2004 which were defective and were themselves replaced by the International Criminal Court Act 2001 (Elements of Crimes) (No. 2) Regulations 2004, S.I. 2004/3239, 17 November 2004. 20 Sec. 50(5), ICC Act 2001; Sec. 9(4)(a), ICC (Scotland) Act 2001.

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international jurisprudence.21 However, the denitions must be construed ‘subject to and in accordance with any relevant reservation or declaration made by the UK when ratifying any treaty or agreement relevant to the interpretation of those articles.’22 Under Article 25(3) of the Rome Statute, the core crimes may be committed in many ways other than the actual commission of the act constituting the crime itself. The implementing legislation only expressly criminalizes the actual commission of the crime; however, the general criminal law of the UK is applicable, so that in relation to what may be called the ‘ancillary’ modes of commission,23 these other modes of commission are also criminalized when they take place within the UK.24 In addition, there is a separate offence of committing conduct ancillary to a core crime (or conduct ancillary to conduct ancillary to a core crime) where the principal offence is outside the criminal jurisdiction created by the Act.25 As with the core crimes, jurisdiction is asserted for conduct committed either within the UK, or committed abroad by a UK national, resident or person subject to UK service jurisdiction.26 However, the conduct does not need to be ancillary to an act for which jurisdiction is asserted under the Act; it is sufcient that that act (whether the core crime itself, or conduct ancillary to the core crime) would be a crime if it had been committed within the UK.27 Ancillary conduct committed outside the UK is evaluated for these purposes using the domestic standards.28 21

Sec. 50(5), ICC Act 2001; Sec. 9(4)(b), ICC (Scotland) Act 2001. Sec. 50(4), ICC Act 2001; Sec. 9(3), ICC (Scotland) Act 2001. The relevant reservations and declarations are certied in the International Criminal Court Act 2001 (Reservations and Declarations) Order 2001, S.I. 2001/2559, 18 July 2001. See also the declaration made by the United Kingdom upon ratication of the Rome Statute. 23 See Art. 25(3)(b–f), Rome Statute. 24 The principle ancillary means of commission of a crime in England are: aiding, abetting, counselling, or procuring the commission of an offence (Sec. 8, Accessories and Abettors Act 1861); incitement at common law; attempt (Sec. 1, Criminal Attempts Act 1981); conspiracy (Sec. 1 Criminal Law Act 1977); assisting an offender or concealing the commission of an offence (Secs 4(1) and 5(1), Criminal Law Act 1987). Slightly different provisions are applicable in Northern Ireland. In relation to Scotland, the equivalents are (all at common law): being art and part in the commission of an offence; incitement; attempt and conspiracy; perverting or attempting to pervert the course of justice; and defeating or attempting to defeat, the ends of justice. 25 See Sec. 52(1) (England and Wales) and Sec. 59(1) (Northern Ireland), ICC Act 2001; Sec. 2(1) and (3), ICC (Scotland) Act 2001. 26 Sec. 52(4) (England and Wales) and Sec. 59(4) (Northern Ireland), ICC Act 2001; Sec. 2(2) and (4), ICC (Scotland) Act 2001. The Scots provision is drafted in a much clearer fashion. 27 Sec. 52(2) (England and Wales) and Sec. 59(2) (Northern Ireland), ICC Act 2001; Sec. 2(3), ICC (Scotland) Act 2001. 28 See Secs 52(3) and 55 (England and Wales), and Secs 59(3) and 62 (Northern Ireland), ICC Act 2001; Secs 2(5) and 7, ICC (Scotland) Act 2001. 22

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With respect to genocide, the United Kingdom is a party to the Genocide Convention 1948,29 and passed the Genocide Act 1969 in order to full its obligations under the Convention. Section 1 of the Genocide Act 1969 incorporated by reference the denition of genocide contained in Article II of the Convention. However, the assertion of jurisdiction under the 1969 Act was limited, only applying to acts of genocide committed within the United Kingdom.30 The denition of genocide in the implementing legislation reincorporates the same denition of genocide into domestic law by reference to Article 6 of the Rome Statute31 (itself identical in all material respects to the denition in the Genocide Convention). As noted above, the assertion of jurisdiction for all of the core crimes is relatively wide, although stopping short of an assertion of full universal jurisdiction. The Genocide Act 1969 was repealed by the implementing legislation.32 With regards to crimes against humanity, the United Kingdom is party to a number of relevant treaties, including the United Nations Convention against Torture 1984.33 However, prior to the adoption of the two pieces of implementing legislation, crimes against humanity were not criminalized as such under United Kingdom law, although conduct amounting to a crime against humanity would probably already have been a crime under the relevant domestic criminal legislation if committed within the UK, and in some cases if committed abroad, even by a non-UK national or resident.34 As with the other core crimes, the implementing legislation in creating the domestic offence simply incorporates the denition directly from the Rome Statute (i.e. Article 7).35 29

Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948, in force 12 January 1951, 78 United Nations Treaty Series 277. The United Kingdom acceded to the Convention on 30 January 1970. 30 See Explanatory Notes to the International Criminal Court Act 2001 (H.M.S.O., London, 2001) (‘Explanatory Notes’), para. 92. 31 See Sec. 50(1) (England and Wales), Sec. 58(1) (Northern Ireland), and Schedule 8, ICC Act 2001; Sec. 1(4) and Schedule 1, ICC (Scotland) Act 2001. 32 See Sec. 83 and Schedule 10, ICC Act 2001; Sec. 1(3), ICC (Scotland) Act 2001. 33 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, in force 26 June 1987, 1465 United Nations Treaty Series 85. The United Kingdom ratied the Convention on 8 December 1988, 34 See for instance Sec. 10, Offences Against the Person Act 1861, in relation to murder or manslaughter committed abroad by a British subject. See also the offence of torture, created by Sec. 134 (1), Criminal Justice Act 1988, which may be tried if the relevant act is committed by ‘a public ofcial or person acting in an ofcial capacity, whatever his nationality’, and whether ‘in the United Kingdom or elsewhere’. Cf. Explanatory Notes, para. 91. 35 See Sec. 50(1) (England and Wales), Sec. 58(1) (Northern Ireland), and Schedule 8, ICC Act 2001; Sec. 1(4) and Schedule 1, ICC (Scotland) Act 2001.

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Lastly, with respect to war crimes, the United Kingdom is a party to the four Geneva Conventions of 1949,36 as well as to the two Additional Protocols of 1977.37 The Geneva Conventions Act 1957 (as amended by the Geneva Conventions (Amendment) Act 1995) created domestic offences of committing grave breaches of the Conventions or of Additional Protocol I.38 The United Kingdom asserted jurisdiction whatever the nationality of the actor, and wherever the acts were committed.39 The implementing legislation adopts the denition in Article 8 of the Rome Statute,40 although omitting Article 8(1), (2)(b)(xx) and (3).41 To the extent that the denition of war crimes in the Statute is wider than the denition of grave breaches under the four Conventions and Additional Protocol I, these offences are therefore incorporated into UK law for the rst time. The Geneva Conventions Act has been left in force (with some consequential amendments)42 in order to preserve the wider assertion of jurisdiction required by the UK’s treaty obligations. Additionally, as the denitions of some war crimes under the Rome Statute are narrower than the denition of grave breaches of Additional Protocol I,43 the Geneva Conventions Act ensures that all grave breaches of the Conventions and Additional Protocol I remain punishable under British law, whether or not they are within the jurisdiction of the ICC. 36 Geneva Conventions of 12 August 1949, in force 21 October 1950 75 United Nations Treaty Series 31, 85, 135 and 287. The United Kingdom ratied the Geneva Conventions on 23 September 1957. 37 Protocols I and II Additional to the Geneva Conventions of 12 August 1949, Geneva, 8 June 1977, in force 7 December 1978, 1125 United Nations Treaty Series 3 and 609. The United Kingdom ratied the Additional Protocols on 28 January 1998 38 Cf. Sec. 1, War Crimes Act 1991, which provides for jurisdiction for the trial for murder, manslaughter or culpable homicide over UK citizens or residents accused of ‘violations of the laws and customs of war’ committed during the period of the Second World War either in Germany or in a place under German occupation. 39 Sec. 1(1), Geneva Conventions Act 1957. 40 See Sec. 50(1) (England and Wales), Sec. 58(1) (Northern Ireland) and Schedule 8, ICC Act 2001; Sec. 1(4) and Schedule 1, ICC (Scotland) Act 2001. 41 Art. 8(1) and (3) do not relate to the substantive denition of war crimes; Art. 8 (2) (b) (xx) requires the adoption (by the amendment procedure) of an annex containing a list of prohibited weapons, projectiles and material, and methods of warfare before it can become operational. The Explanatory Note (para. 157) expresses the opinion that new primary legislation will be needed to create such an offence if an annex is ever adopted. 42 See Secs 70 and 83, and Schedule 10, ICC Act 2001. The modications only apply to offences committed after the ICC Act 2001 was brought into force. 43 See, e.g., the discussion in Cryer, ‘Implementation’, supra note 16, at 739-740. On the differences between the scope of the grave breaches provisions of Additional Protocol I and Art. 8(2)(b), Rome Statute, see Michael Bothe, ‘War Crimes’ in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (3 vols., Oxford University Press, 2002), vol. 1, 379–426, particularly at 395-396.

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3. General Principles of Criminal Law Prior to the passing of the implementing legislation, the concept of ‘command responsibility’ did not exist in British law. Accordingly the implementing legislation transposes the denition of command responsibility from Article 28 of the Rome Statute directly into domestic law.44 As with other provisions directly based on provisions of the Rome Statute, the courts are required ‘to take into account any relevant judgment or decision of the ICC,’45 and may take into account any other relevant international jurisprudence.46 One peculiarity of the implementing legislation is that it species that liability on the basis of command responsibility is on the basis that the person ‘is regarded as aiding, abetting, counselling or procuring the commission of the offence’.47 As noted above, the common law rules relating to participation in crimes are applicable to the core crimes as implemented into English and Scots law.48 These rules broadly correspond to the provisions of Article 25 (3)(b–d) of the Statute. The implementing legislation does not import the defences from the Rome Statute, but rather relies on the normal range of defences in domestic law. Therefore certain defences which would be available in a prosecution before the ICC will not be available in a domestic trial; for instance, duress (contained in Article 31(d) of the Rome Statute) is not a defence in English law for any offence involving murder.49 It has also been suggested that self-defence under Article 31(c) of the Rome Statute is wider than the equivalent domestic law defence.50 The implementing legislation contains no provision regarding superior orders, despite the fact that it constitutes a defence in limited terms for war crimes under the Statute;51 at present it seems that superior orders do not constitute a defence at common law.52 44

Sec. 65, ICC Act 2001; Sec. 5, ICC (Scotland) Act 2001. Sec. 65(5), ICC Act 2001; Sec. 9(4)(a), ICC (Scotland) Act 2001. 46 Sec. 65(5), ICC Act 2001; Sec. 9(4)(b), ICC (Scotland) Act 2001. 47 Sec. 65(4), ICC Act 2001; Sec. 5(4), ICC (Scotland) Act 2001 in the equivalent Scottish law terms (‘shall be regarded as being art and part in the commission of the offence’). 48 See supra, text accompanying note 24. 49 R. v. Howe [1987] AC 147 (H.L.). 50 See Cryer, ‘Implementation’, supra note 16, at 740. 51 Art. 33, Rome Statute. In any case, it seems that a necessary element of the defence (art. 33 (1) (a)) will always be lacking for members of the British armed forces as they are only bound to obey ‘any lawful command’ issued by a superior (see Sec. 34, Army Act 1955). 52 See R. v. Clegg [1995] 1 All ER 334 (H.L.) at 343; Yip Chiu-Cheung v. R [1994] 2 All ER 924 (P.C.) at 928, although both statements are arguably obiter. For further discussion of whether the defence may be recognised on the basis of customary international law, and also of the possible defence of reprisal, see Cryer, ‘Implementation’, supra note 16, at 741-742. 45

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The mental element for the core crimes derogates from normal domestic law, and adopts the terms of Article 30 of the Rome Statute.53 In interpreting the meaning of the terms contained in Article 30, courts are required ‘to take into account any relevant judgment or decision of the ICC’,54 and may take into account any other relevant international jurisprudence.55 The implementing legislation came into force prior to the entry into force of the Rome Statute; there are no potential problems of retroactivity. The United Kingdom is not a party to the Non-applicability of Statutory Limitations Convention 1968,56 nor is it a party to the equivalent Council of Europe Convention.57 In British law, offences triable on indictment58 are not subject to a time-bar on prosecution unless specically so provided. No such provision is made in the implementing legislation.

4. Preconditions for the Exercise of Jurisdiction The implementing legislation contains no reference to the principle of ne bis in idem. However, the possibility of a subsequent trial in the UK following conviction or acquittal by the ICC seems remote. Quite apart from the necessary consent of the Attorney General or the Attorney General for Northern Ireland, the courts are unlikely to allow such a prosecution to go ahead. A prior conviction or acquittal by the ICC may well be held to be sufcient to sustain a plea of autrefois acquit or autrefois convict. These special pleas operate as a bar to the indictment if it contains a charge for the ‘same offence’ as that for which the accused was previously acquitted or convicted.59 The fact that the prior acquittal or conviction was not before a British court is not a bar,60 and it seems 53

See Sec. 66(3), ICC Act 2001; Sec. 8(3), ICC (Scotland) Act 2001. See Sec. 66(4) (England and Wales and Northern Ireland), ICC Act 2001; Sec. 9(4)(a), ICC (Scotland) Act 2001. 55 See Sec. 66(4), ICC Act 2001 (England and Wales and Northern Ireland); Sec. 9(4)(b), ICC (Scotland) Act 2001. 56 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, New York, 26 November 1968, in force 11 November 1970, 754 United Nations Treaty Series 73. 57 European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes, Strasbourg, 25 January 1974, in force 27 June 2003, Council of Europe Treaty Series No. 82. 58 The core crimes are all triable only on indictment: Sec. 53(2) (England and Wales) and Sec. 60(2) (Northern Ireland), ICC Act 2001; Sec. 3(2), ICC (Scotland) Act 2001. 59 Connelly v. DPP [1946] AC 1254. 60 R v. Roche (1775) 1 Leach 134; R v. Aughet (1918) 13 Cr. App. R. 101 (prior trial by a competent foreign court). 54

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likely that the British courts would extend the principle to convictions and acquittals before the ICC. In fact British law seems to be rather more protective of the accused than the Statute requires; the courts also dispose of a general power to stay an indictment if the prosecution would be ‘oppressive’ in view of previous proceedings against the accused,61 for example because the offence charged is substantially or in effect the same as one for which the accused has previously been acquitted or convicted. This principle might prevent a domestic trial following a conviction or acquittal by the ICC, even if the domestic prosecution is not for a charge under the implementing statute,62 although this is by no means certain given the seriousness and specic character of the crimes subject to prosecution before the ICC.63 No immunities from prosecution arise from domestic constitutional law; every individual is in theory equally subject to prosecution. No provision is made in the implementing legislation allowing the courts to disregard the diplomatic, consular, or other immunities enjoyed by foreign nationals and required by international law in relation to domestic prosecution of offences under the implementing legislation.64

5. Offences against the Administration of Justice Section 54 and 61 of the ICC Act 2001 provide for criminalization of the offences contained in Article 70 of the Statute in relation to England and Wales and Northern Ireland respectively; Section 4 of the ICC (Scotland) Act 2001 performs a similar function for Scotland.65 As required by the Rome Statute, these provisions extend the application of domestic offences against the administration of justice (either statutory or at common law) to offences against the ICC. Wider jurisdiction than is required by Article 70(4)(a) (‘on its territory, or by one of its nationals’) is in fact taken, as, in addition to acts committed within the UK, the legislation provides for jurisdiction over the same class of persons as for the core crimes (e.g. nationals, residents, and persons subject to UK service jurisdiction).66 Jurisdiction is also asserted for ancillary offences 61

Connelly v. DPP [1946] AC 1254. E.g. if a British national was acquitted of genocide by the ICC due to a lack of proof of the requisite genocidal intent, and a domestic prosecution was then mounted for murder committed abroad under Sec. 10, Offences Against the Person Act 1861. 63 One factor the courts take into consideration is whether the count for which the second prosecution is being brought was open to the previous court (see e.g. Connelly v. DPP [1946] AC 1254, at 1359, 1360 (per Lord Devlin)). This would obviously not be the case in the example given in the previous note. 64 Cf., however, Sec. 23, ICC Act 2001, relating to arrest and delivery of persons to the ICC. 65 Schedule 9, ICC Act 2001, and Schedule 2, ICC (Scotland) Act 2001, set out the terms of Art. 70(1). 66 Sec. 54(4) (England and Wales) and Sec. 61(4) (Northern Ireland), ICC Act 2001; Sec. 4(3), ICC (Scotland) Act 2001. 62

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against the administration of the Court in relation to the same categories of persons.67 In interpreting and applying Article 70(1), the courts must take into account any relevant judgment or decision of the ICC,68 and account may be taken of any other relevant international jurisprudence.69

6. Discretion of the Prosecution As with all prosecutions in the United Kingdom, the decision whether to prosecute is discretionary; however, a decision to refuse to prosecute is subject to judicial review.70 No criminal proceedings under the ICC Act 2001 (whether for the core crimes, offences against the administration of the ICC, or conduct ancillary to either) may be instituted except by or with the consent of the Attorney General in England and Wales,71 or of the Attorney General for Northern Ireland.72 There is no such requirement in Scotland. There is no presence requirement specied in relation to investigation of the core crimes; however, to the extent that the ICC Act 2001 and the ICC (Scotland) Act 2001 provide for jurisdiction over persons who have taken up residence in the UK, who otherwise would not fall under another of the heads of jurisdiction, a certain minimum presence requirement exists in order to establish jurisdiction rationae personae.

III. Co-Operation with the Court 1. Duty to Co-operate in General The co-operation procedures of the Rome Statute are given effect in England and Wales and Northern Ireland by parts 2 to 4 of the ICC Act 2001. Many of these provi-

67

For an explanation of the operation of the category of ancillary offences, see above. However, in distinction to the core crimes, jurisdiction is not asserted for conduct ancillary to an offence against the ICC where the primary act is committed outside the jurisdiction by a person not subject to jurisdiction. 68 Sec. 54(2) (England) and Sec. 61(2) (Northern Ireland), ICC Act 2001; Sec. 9(4)(a), ICC (Scotland) Act 2001. 69 Sec. 54(2) (England) and Sec. 61(2) (Northern Ireland), ICC Act 2001; Sec. 9(4)(b), ICC (Scotland) Act 2001. 70 See e.g. R v. DPP, ex parte C, [1995] 1 Cr. App. R. 136; R (Egerton) v. D.P.P., [2002] EWHC Admin 569. The courts however are reluctant to interfere unless the decision is ‘wholly irrational or perverse or absurd’ (R v. CPS ex p. Watersworth (unreported, 1 December 1995), per Staughton LJ). 71 Sec. 53(3) (core crimes) and Sec. 54(5) (offences in relation to the ICC), ICC Act 2001. 72 Sec. 60(3) (core crimes) and Sec. 61(5) (offences in relation to the ICC), ICC Act 2001.

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sions also apply to Scotland.73 For those provisions that do not apply, corresponding provisions are contained in the ICC (Scotland) Act 2001.74 Many of the provisions of the Act extend the relevant domestic law applicable to investigations within England and Wales to those conducted by the ICC, although certain procedures, for instance the taking of ngerprints and non-intimate samples,75 do not make use of the corresponding domestic provisions and are regulated in detail in the implementing legislation. Warrants for arrest and surrender, warrants for provisional arrest and proceedings for a delivery order are dealt with by an ‘appropriate judicial ofcer’,76 dened by the ICC Act 2001 as either the Senior District Judge (formerly the Chief Magistrate) or a District Judge (Magistrates’ Court) designated for that purpose by the Lord Chancellor in England, Wales and Northern Ireland, or in Scotland, the Sheriff of Lothian and Borders.77 The United Kingdom has made a declaration as foreseen by Article 87(2) of the Rome Statute, specifying English as the language for the transmission of requests for co-operation and supporting documents.78 However, it has not designated a channel of communication under Article 87 (1) (a). In these circumstances, any communications will be transmitted through the diplomatic channel. The implementing legislation treats the Secretary of State as the person who receives requests for the arrest and surrender of persons to the ICC.79 In the case of a request for arrest and surrender concerning a person in Scotland, the Secretary of State transmits the request to the ministers of Scotland.80 With regard to requests concerning ‘Other forms of assistance’ (i.e. those 73 See Sec. 79(1), ICC Act 2001. Part 2 applies to Scotland in its entirety, as does Part 4 with the exception of Sec. 49 (power to make provision for enforcement of orders other than sentences of imprisonment). Of Part 3, only Sec. 32 (transfer of prisoner to give evidence or assist in investigation) and Sec. 39 (production or disclosure prejudicial to national security) apply to Scotland. The repeal of the Genocide Act 1969 also does not apply to Scotland, but the Act is repealed for Scotland by Sec. 1(3), ICC (Scotland) Act 2001. Sec. 80, ICC Act 2001, provides for a power for the Secretary of State to modify the ICC Act 2001 by regulation in order to coordinate with the Scottish legislation. 74 See Part 2 (Secs 11-22) (corresponding broadly to Part 3, ICC Act 2001) and Sec. 26 (containing the equivalent of Sec. 49 ICC Act 2001), ICC (Scotland) Act 2001 75 Sec. 34(1) and Schedule 4, ICC Act 2001, Sec. 17 and Schedule 4, ICC (Scotland) Act 2001. However, the ICC Act 2001 uses the denition of ‘ngerprint’ and ‘non-intimate sample’ contained in Sec. 65, Police and Criminal Evidence Act 1984: see Sec. 34(2), ICC Act 2001. 76 Sec. 26, ICC Act 2001. 77 Sec. 26, ICC Act 2001. 78 See the declaration made upon ratication, 4 October 2001, reproduced in Rome State of the International Criminal Court, United Kingdom Treaty Series No. 35 (2002), Cm 5590 (2002), at 78. 79 See for example Secs 2(1), 3(1), 20(1) and 21(1), ICC Act 2001. 80 Sec. 2(2) (arrest and surrender) and Sec. 3(3) (provisional arrest), ICC Act 2001.

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apart from arrest and surrender of persons to the Court)81, the Secretary of State is again the appropriate person, although the legislation appears to contemplate that the Scottish ministers will receive requests relating to Scotland directly, or at least that they will be transmitted directly once they have arrived through the diplomatic channel.82 In this respect, the situation is similar under the statutory instruments adopted under the United Nations Act 1946 in relation to the ICTY and ICTR, where the Secretary of State is treated as being the appropriate person.83 Under the ICC Act 2001, provision is made for the conferral on the ICC of legal capacity as a body corporate by Order in Council.84 The relevant order was made in March 2002.85 The ICC Act 2001 also contains a power to ‘make such provision as appears … to be necessary or expedient’ by Order in Council in order to enable the ICC to sit within the United Kingdom.86 The UK signed the Agreement on the Privileges and Immunities of the International Criminal Court (‘APIC’)87 on 10 September 2002. The ICC Act 2001 provides for a broad power to grant privileges and immunities to the ICC itself, and to those persons connected with its functioning by Order in Council.88 Initially, the power to grant privileges and immunities was exercised only with regard to the judges, the prosecutor, the deputy prosecutors and the registrar, although no provision was made for privileges and immunities of the Court itself; those privileges and immunities were to come into force upon UK ratication of the APIC.89 Subsequently, that statutory instrument was repealed and a fresh statutory instrument was made, which in addition to provision in relation to the various ofcials and 81

Part 3, ICC Act 2001, and Part 2, ICC (Scotland) Act 2001) See e.g., Sec. 12(1), ICC (Scotland) Act 2001: ‘This section applies where the Scottish Ministers receive a request from the ICC for assistance …’. 83 See the United Nations (International Tribunal) (Former Yugoslavia) Order 1996, S.I. 1996/716 and the United Nations (International Tribunal) (Rwanda) Order 1996, S.I. 1996/1296 (both as subsequently amended multiple times). 84 Schedule 1, para. 1, ICC Act 2001. 85 International Criminal Court (Immunities and Privileges) Order 2002, S.I. 2002/793, 26 March 2002, Art. 3: ‘The Court shall have the legal capacities of a body corporate.’ 86 Schedule 1, para. 2, ICC Act 2001. 87 Agreement on the Privileges and Immunities of the International Criminal Court, New York, 9 September 2002, in force 22 July 2004, 2271 United Nations Treaty Series 3. 88 Schedule 1, para. 1(2), ICC Act 2001; in accordance with Art. 48, Rome Statute, privileges and immunities may be extended to judges, the prosecutor, deputy prosecutors, the registrar, the deputy registrar, staff of the ofce of the prosecutor and of the registry, and to counsel, experts, witnesses, and other person involved in proceedings of the ICC. 89 International Criminal Court (Immunities and Privileges) Order 2002, S.I. 2002/793, 26 March 2002, Art. 4(1). 82

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personnel already covered made provision in relation to the privileges and immunities of the Court itself, of the deputy registrar, staff of the ofce of the Prosecutor and staff of the Registry, of other locally recruited personnel, of representatives of States participating in the proceedings of the Court, counsel and their assistants, witnesses, victims, experts and other persons required to be present at the seat of the Court;90 again, those privileges and immunities will come into force upon ratication of APIC by the UK.91 As required by the Statute, the judges, the prosecutor, the deputy prosecutors and the registrar are accorded the same privileges and immunities as are accorded to the head of a diplomatic mission under the Diplomatic Privileges Act 1964, which itself incorporates the relevant parts of the Vienna Convention on Diplomatic Relations 1961;92 These privileges are only enjoyed ‘when engaged on or with respect to the business of the Court’.93 Immunity from suit and legal process is also granted (even after leaving ofce) for acts, including words written or spoken, done in performance of their functions.94 The Court itself is granted the same inviolability in relation to its premises and archives as is accorded in respect of the ofcial archives and premises of a diplomatic mission,95 and its property, funds and assets are immune from suit and legal process.96 Provision is made in a separate statutory instrument for privileges and immunities of representatives of States Parties participating in the Assembly of States Parties.97

2. Specic Forms of Co-operation The implementing legislation makes use of the procedures already existing in relation to domestic crimes to put in place procedures in relation to entry, search and the seizure 90 International Criminal Court (Immunities and Privileges) (No. 1) Order 2006, S.I. 2006/1907, 19 July 2006. 91 Art. 1. 92 Art. 15(1)(a). If the persons in question are British nationals, they enjoy the same privileges and immunities as if they were a diplomatic agent: Art. 15(4). 93 Art. 15(1)(a). 94 Art. 15(1)(c). Exemption from income tax in relation to emoluments received from the ICC is provided for by Art. 15(1)(b) (Cf. Art. 15(6) APIC). 95 Art. 5 96 Art. 6. The Court, its property and income are also exempted from income and capital gains tax (Art. 7), is exempt on customs and excise duties on goods imported for ofcial use (Art. 9) and enjoys various other reliefs (Arts. 8 and 10-13). 97 International Criminal Court (Immunities and Privileges) (No. 2) Order 2006, S.I. 2006/1908, 19 July 2006; again, the privileges and immunities are to be brought into force upon ratication of the APIC: Art. 1(2).

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of items. Upon receipt of a request from the ICC for documentation or information which for its performance requires entry, search or seizure, the Secretary of State may direct a constable to apply for a warrant under Part 2 of the Police and Criminal Evidence Act 1984 (or in Northern Ireland, under Part III of the Police and Criminal Evidence (Northern Ireland) Order 198998) as if a serious arrestable offence had been committed.99 In Scotland, an equivalent power exists allowing the Scottish ministers to direct the Procurator Fiscal to apply for a warrant authorising entry, search, and seizure.100 Where a request for evidence to be taken or produced is received, the Secretary of State may nominate a court for that purpose.101 The nominated court has the same powers to secure the attendance of witnesses, and to compel production of documents or other articles as it would have for other proceedings.102 The court may also take evidence under oath.103 However, a person may not be compelled to give evidence or produce anything that would not be possible in a domestic prosecution.104 Where the Secretary of State receives a summons or other document together with a request for it to be served on a person in the UK from the ICC he may direct the chief ofcer of police for the area to have the summons or document to be personally served on the person specied.105 In the case of a request from the ICC for the examination of grave sites, proceedings before the ICC are to be regarded as ‘criminal proceedings’ within the meaning 98

S.I. 1989/1341. Sec. 33, ICC Act 2001; in relation to Scotland, see Sec. 16, ICC (Scotland) Act 2001, in substantially similar terms. 100 Sec. 16, ICC (Scotland) Act 2001. 101 Sec. 29, ICC Act 2001; in relation to Scotland, see Sec. 13(2), ICC (Scotland) Act 2001. 102 Sec. 29(3)(a), ICC Act 2001; Sec. 13(3)(a), ICC (Scotland) Act 2001. 103 Sec. 29(3)(b), ICC Act 2001; Sec. 13(3)(b), ICC (Scotland) Act 2001. See also Sec. 36, ICC Act 2001, and Sec. 18, ICC (Scotland) Act 2001, relating to the provision of records and documents which have either been used as evidence in domestic proceedings or are the result of any investigation. 104 Sec. 29(4), ICC Act 2001; Sec. 13 (5), ICC (Scotland) Act 2001. In England and Wales and Northern Ireland, the court has the power to exclude the public from the court in order to protect victims, witnesses or the accused, or in order to protect condential or sensitive information (Sec. 30(2), ICC Act 2001). In Scotland, such proceedings are always conducted in private (Sec. 13(4), ICC (Scotland) Act 2001). In all proceedings, a record/register is kept of the proceedings by the court, a copy of which is sent to the Secretary of State or Scottish ministers, and by them to the ICC. The record/register may only be consulted with their authorization or with the leave of the domestic court. The record must indicate all those persons with an interest who were present, whether and by whom those persons were represented and whether any of those persons were denied the opportunity of cross-examining a witness (this last requirement does not exist in relation to Scotland) (see Sec. 30(3–5), ICC Act 2001; Sec. 14(2–4), ICC (Scotland) Act 2001). 105 Sec. 31, ICC Act 2001. The equivalent provision in Scotland is Sec. 15, ICC (Scotland) Act 2001. 99

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of Section 23 of the Coroners Act 1988 or Section 11 of the Coroners Act (Northern Ireland) 1959 which provide for a power of the coroner to order exhumation.106 Section 37 of the ICC Act 2001 provides for broad powers of the courts for ascertaining whether a person has beneted from a core crime, and for the identication of the extent and whereabouts of property deriving either directly or indirectly from a core crime. Upon receipt of such a request from the ICC, the Secretary of State may direct a constable to make an application for an order or warrant following the procedure contained in Schedule 5 of the ICC Act 2001.107 Section 38, in conjunction with Schedule 6 of the ICC Act 2001, provides for a procedure for the making of freezing orders in relation to property liable to eventual forfeiture by the ICC.108 If a request is received from the ICC, the Secretary of State authorizes a person to act on behalf of the ICC and directs them to make an application for a freezing order.109 To the extent that provision is not made in the implementing legislation for other forms of co-operation required by Article 93(1) of the Rome Statute, compliance can be achieved without an enabling power in the legislation. As noted above, the implementing legislation provides that the Secretary of State may direct a competent domestic court to secure the attendance of witnesses for the purpose of taking evidence. In addition, Section 28 provides that pursuant to a request by the ICC under Article 93(1)(c) of the Rome Statute for assistance in questioning a person being investigated or prosecuted, a person may be questioned if he has been informed of his rights under Article 55 of the Rome Statute,110 and if he consents to questioning.111 In the event that the ICC requests the transfer of a prisoner for the purposes of identication or for obtaining testimony or other assistance, Section 32 of the ICC Act 2001 provides a procedure for such a transfer. As noted above, in proceedings for the taking or protection of evidence under Section 29 of the ICC Act 2001, Section 30(2) of the ICC Act 2001 provides that the 106

Sec. 35, ICC Act 2001. In relation to Scotland, see Sec. 19 and Schedule 5, ICC (Scotland) Act 2001. 108 In relation to Scotland, see Sec. 20 and Schedule 6, ICC (Scotland) Act 2001. 109 Sec. 39, ICC Act 2001; Sec. 20, ICC (Scotland) Act 2001. If a freezing order has been made, a constable may seize any property specied in order to prevent its removal from the jurisdiction (Schedule 6, para. 6(1), ICC Act 2001). 110 The provisions of Art. 55 are set out as Schedule 3, ICC Act 2001, and Schedule 3, ICC (Scotland) Act 2001. 111 Sec. 28(2) (a) and (b), ICC Act 2001; cf. Sec. 12 (2) (a–c), ICC (Scotland) Act 2001, in similar terms, but also providing that questioning may not take place until the fact that the person has been informed of his rights under Art. 55 has been recorded in writing. Except in Scotland, consent may be given by an appropriate person acting on the behalf of the person if it is inappropriate for the person to act for himself ‘by reason of his physical or mental condition or his youth’ (Sec. 28(4)(b), ICC Act 2001). 107

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court may exclude the public from the court room in order, inter alia, to protect witnesses and victims.112 Further, Sections 57 and 64 of the ICC Act extend the application of various pieces of domestic legislation concerning the protection of victims and witnesses in relation to domestic prosecutions of the core crimes.113 There is no provision in the ICC Act 2001 that explicitly provides for a general duty of national authorities to consult with the ICC in relation to forms of co-operation other than arrest and surrender. Provision is expressly made for consultation only in respect of an application for bail which requires the court to notify the Secretary of State who will then consult with the ICC;114 bail may not be granted by the domestic court without ‘full consideration’ of any recommendations made by the ICC.115 The Foreign and Commonwealth Ofce has justied the omission of a general duty to co-operate on the basis that consultation ‘can be done without legislative provision, as is already the case with ICTY and ICTR for example’.116 There is no provision expressly allowing the prosecutor to conduct on site investigations in the UK. However, the provisions on ‘Other forms of assistance’ are expressly without prejudice to ‘the provision of assistance to the ICC otherwise than under [Part 3]’,117 and there are no obstacles to the prosecutor conducting investigations within the UK on an ad hoc basis. The United Kingdom has taken advantage of the option open to it under Articles 72 and 93(4) Rome Statute in relation to the disclosure of information prejudicial to national security; Section 39(1) ICC Act 2001 contains a general saving clause to the effect that none of the provisions on co-operation in the implementing legislation ‘requires or authorises the production of documents, or the disclosure of information, which would be prejudicial to the security of the United Kingdom’.118

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For the position in Scotland, see Sec. 13(4), ICC (Scotland) Act 2001, and see above. In relation to Scotland, see Sec. 10, ICC (Scotland) Act 2001 relating to the inadmissibility of evidence in relation to sexual offences. 114 Sec. 18(1), ICC Act 2001. In respect of an application for bail in Scotland, the court must notify the Scottish ministers who then notify the Secretary of State; the Secretary of State then consults with the ICC and informs the Scottish ministers of any recommendations made by the ICC: Sec. 18(2)(b), ICC Act 2001. 115 Sec. 18(1)(c) and (2)(c), ICC Act 2001. 116 Foreign and Commonwealth Ofce, letter to Amnesty International, 26 January 2001, para. 3, cited in ‘Amnesty International’s Concerns about the International Criminal Court Bill [H.L.] to Implement the Rome Statute in England, Wales and Northern Ireland’, A.I. Index: EUR 45/015/2001, 6 February 2001, at 14. 117 Sec. 27(3), ICC Act 2001; Sec. 11(3), ICC (Scotland) Act 2001. 118 Sec. 39(2), ICC Act 2001, provides for certication by the Secretary of State, which constitutes conclusive evidence of the prejudicial nature of disclosure or production. 113

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3. Arrest and Surrender There do not appear to be any substantive grounds in domestic law for refusal of surrender to the Court. No other information besides that specied in Article 91(2)(a) and (b) is required for the surrender of a person to the ICC.119 Upon receipt of a request for arrest and surrender, the request is transmitted to an appropriate judicial ofcer,120 who, having veried that the warrant appears to have been issued by the ICC,121 will endorse it for execution in the United Kingdom.122 In the case of a request for surrender of a person already convicted by the ICC unaccompanied by a warrant for arrest, the appropriate judicial ofcer will issue a warrant for arrest if the request is accompanied by a copy of the judgment of conviction, information demonstrating that the person sought is the one referred to in the judgment, and if the person has been sentenced, a copy of the sentencing judgment and a statement of the time served and time remaining to be served.123 In the case of a request for provisional arrest, the Secretary of State transmits the request to a constable with instructions that he should apply for a warrant of arrest.124 On an application made on oath by a constable (or the Procurator Fiscal) stating that a request has been made on the grounds of urgency for arrest by the ICC, and that he has reason to believe that the person is in, or on his way to, the UK, an appropriate judicial ofce issues a warrant.125 A person arrested under a warrant obtained by either of these procedures must be brought before a competent court (i.e. one consisting of an appropriate judicial ofcer),126 ‘as soon as is practicable’.127 Once before the court, if arrested pursuant to a warrant for arrest and surrender, the court must issue an order for surrender to the ICC 119

Sec. 5(2), ICC Act 2001. See the observations of Cryer, ‘Implementation’, supra note 16, at 736 on this point. 120 Sec. 2(1), ICC Act 2001; for discussion of the meaning of ‘appropriate judicial ofcer’, see above. In relation to a person in Scotland, the request is transmitted to the Scottish Ministers, who then transmit it to the appropriate judicial ofcer (Sec. 2 (2), ICC Act 2001). 121 Sec. 2(3), ICC Act 2001. 122 Sec. 2(1), ICC Act 2001. Once endorsed, the warrant has effect as if it were a warrant for arrest of a person for an offence committed in that part of the UK: Sec. 14(1), ICC Act 2001. 123 Sec. 2(4), ICC Act 2001. 124 Sec. 3(2) (a), ICC Act 2001. In relation to a request relating to a person in Scotland, the request is transmitted to the Scottish Ministers, who then instruct the Procurator Fiscal to apply for a warrant: Sec. 3(3)(a), ICC Act 2001. 125 Sec. 3(2)(b), ICC Act 2001. In substantially similar terms for Scotland, see Sec. 3(3)(b), ICC Act 2001. 126 Sec. 26, ICC Act 2001. 127 Secs 4(1) and 5(1), ICC Act 2001.

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(a ‘delivery order’) if it is satised that the warrant was properly endorsed in accordance with Section 2(3) or properly issued under Section 2(4), and that the person before the court is actually the person named in the warrant.128 Nothing more is required.129 The court further has power, either on the application of the person detained or of its own motion, to verify that the person was lawfully arrested in pursuance of the warrant and that his rights have been respected.130 However, the only relief that may be granted is a declaration to that effect.131 Once the domestic court has made a delivery order, the arrested person is remanded in custody or on bail to await directions from the Secretary of State. At this point he must be informed of his right to review of the delivery order.132 The Secretary of State may not give directions until 15 days after the delivery order is made.133 If during that period an application for habeas corpus is made, no directions can be given until the application has been disposed of. On an application for habeas corpus, the court is restricted to re-examining the matters contained in Section 5(2); if it is not satised that they are fullled, it may set aside the delivery order and discharge the arrested person.134 The court may also make the declaration regarding respect of the arrested persons rights provided for in Section 5(6).135 If a person has not been delivered after 40 days he may apply for discharge; discharge may be refused if reasonable cause is shown for the delay.136

128

Sec. 5(2), ICC Act 2001. If the court refuses to make a delivery order the court must remand the person arrested and inform the Secretary of State or the Scottish ministers (Sec. 8(1), ICC Act 2001). The Secretary of State or Scottish ministers must then inform the court without delay that an appeal will be brought, otherwise the person arrested will be discharged (Sec. 8(2) and (3)). The appeal lies to the High Court with no requirement of permission; the appeal is by way of rehearing (Sec. 9(1)). If the High Court dismisses the appeal, a further appeal, with the permission of the High Court or the House of Lords, lies to the House of Lords (Sec. 9(3)). The person arrested is remanded whilst the appeal process is ongoing (Sec. 9(6)). For the appeal procedure in Scotland, see Sec. 10. 129 Pursuant to Sec. 5(5), ICC Act 2001, the court has no power to enquire whether any ICC warrant was duly issued, or whether there is sufcient evidence to justify his trial for the offence. 130 Sec. 5(6), ICC Act 2001. 131 Sec. 5(8), ICC Act 2001. Where such a declaration is made, the court must notify the Secretary of State (and in relation to proceedings in Scotland, the Scottish ministers) who then transmits the notication to the ICC: Sec. 5(9), ICC Act 2001. 132 Sec. 11(1) (b), ICC Act 2001. 133 Sec. 12(1), ICC Act 2001. The 15-day period does not apply to those who waive their right of review under Sec. 13, or who have consented to surrender in accordance with Sec. 7(4)(b). 134 Sec. 12(4)(a), ICC Act 2001. 135 Sec. 12(4)(b), ICC Act 2001. 136 Sec. 19(3), ICC Act 2001.

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A person arrested consequent upon a request for provisional arrest may be remanded in custody or released on bail.137 As soon as a warrant for arrest and surrender is produced, he is treated as if arrested under that warrant.138 The maximum period of detention or bail is to be set by an Order in Council in accordance with the time period adopted in the Rules of Procedure and Evidence.139 At the time of writing, no order had yet been made.140 Where an application for bail is made the court shall notify the Secretary of State of the application. The Secretary of State will then consult with the ICC and bail may not be granted without full consideration of any recommendations made by the ICC.141 In accordance with Article 59(4), the court must also consider whether, given the gravity of the offence alleged to have been committed or for which the person has been convicted by the ICC, there are urgent and exceptional circumstances justifying release on bail, and whether any necessary measures have been or will be taken to secure that the person will surrender to custody in accordance with the terms of his bail.142 Rather than allowing the arrested person to bring a challenge before the domestic courts on the basis of ne bis in idem, the ICC Act 2001 provides that proceedings for a delivery order are to be adjourned pending the result of any challenge before the ICC to the admissibility of the case or to the jurisdiction of the Court (including one based on ne bis in idem).143 The procedure for dealing with a request for surrender where criminal proceedings are pending, in progress, or have concluded in the UK, where extradition proceedings are in course, or where there are proceedings pending or in progress for delivery to the ICTY or ICTR, is set out in Schedule 2 to the ICC Act 2001.144 In the case of criminal and extradition proceedings which are pending or in progress at the time of the request, the Secretary of State must inform the domestic court of the request from the ICC;145 the domestic court will, if necessary, suspend the proceedings so as 137

Sec. 4(3), ICC Act 2001. Sec. 4(2) and (5), ICC Act 2001. 139 Sec. 4(4), ICC Act 2001. For the power to adopt orders in council to implement the Rules of Procedure and Evidence (‘RoPE’), see Schedule 1, para. 1(3). 140 However, it is to be expected that the period will mirror the maximum of 60 days resulting from Rule 188, RoPE, and Art. 91, Rome Statute. 141 Sec. 18(1) and (2), ICC Act 2001. 142 Sec. 18(3), ICC Act 2001. 143 Sec. 5(4), ICC Act 2001. 144 Sec. 24, ICC Act 2001. 145 Schedule 2, paras 2(1) and 3(1) [criminal proceedings]; paras 8(1) and 9(1) [extradition]. An equivalent provision exist in relation to service courts: para. 4(1). 138

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to enable proceedings to determine whether a delivery order should be made.146 If a delivery order is made and criminal or extradition proceedings are still pending or in progress, the Secretary of State must consult the ICC before giving directions in relation to the order,147 and (except in Scotland) may direct that the domestic proceedings be discontinued.148 Where the extradition request is from a state not party to the Rome Statute, the decision required by Article 90(7) of the Rome Statute will be carried out by the Secretary of State through consultation with the ICC and selective exercise of the powers to give directions for execution of a delivery order and to discontinue proceedings. The procedure where one of the international tribunals has also requested delivery of the person is slightly more complicated to take account of their special status;149 the Secretary of State must consult with the ICC and the relevant tribunal, and then inform the domestic court of the result of the consultations.150 The domestic court may then if necessary adjourn the proceedings.151 If a delivery order for the ICC is made and the other proceedings are still pending or in progress, the Secretary of State must consult the ICC before giving directions for execution of the order,152 and (except in Scotland) may direct that the other delivery proceedings be discontinued.153 When the Secretary of State receives a request for the transit of a person being surrendered by another state, if he accedes to it, the request will be treated as if it were a request for that person’s arrest and surrender.154 Similarly, if a person being surrendered by another state makes an unscheduled landing in the United Kingdom, he may be arrested by any constable, and must then be brought before a competent court as soon as possible.155 The domestic court will then remand the person pending receipt by the Secretary of State of a request from the ICC for his transit and the Secretary 146

Schedule 2, para. 2(2) and para. 3(2) [criminal proceedings], paras 8(2) and 9(2) [extradition]. Schedule 2, paras 2(3) (a) and 3(3), ICC Act 2001. 148 Schedule 2, para. 2(3)(b). Para. 2(5) provides that a discontinuance does not prevent fresh proceedings later being brought. 149 One may question the logic of apparently giving precedence to the ICC, given that obligations to deliver persons to the international tribunals derive from Chapter VII of the UN Charter, and the effect of Art. 103 of the Charter. The Explanatory Notes, para. 139, does not distinguish between the two obligations, but expresses the opinion that ‘[i]n practice, it is expected that the ICC and the Tribunal would reach an agreement as to whose request is to take priority’. 150 Schedule 2, paras 12(1) and (2), and 13(1) and (2). 151 Schedule 2, paras 12(3) and 13(3). 152 Schedule 2, paras 12(4)(a) and 13(4). 153 Schedule 2, para. 12(5). 154 Sec. 21(1) and (2), ICC Act 2001. 155 Sec. 22(1), ICC Act 2001. 147

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of State’s decision whether to accede to the request.156 If no such request is received by the Secretary of State before the end of the period of 96 hours beginning with the time of the arrested person’s unscheduled landing, the Secretary of State will notify the domestic court of that fact, and the court will discharge the arrested person.157 However, if the Secretary of State receives a request for transit before the end of that period, he or she has a discretion either to accede to the request, in which case the request will be treated as if it were a request for transit under Section 21, or not to accede, in which case the court will discharge the person.158 The duties to inform the Court in Rule 184(1) of the Rules of Procedure and Evidence and Article 97 of the Rome Statute are not the subject of any specic provision in the implementing legislation; however, as with the general duty to co-operate, duties may be performed without the imposition of a specic duty under domestic law. The UK has entered into no agreements with other states subsequent to its accession to the Rome Statute that would prevent the UK from surrendering a person to the ICC. In accordance with the United Kingdom’s obligations under the Vienna Convention on Diplomatic Relations 1961,159 and the Vienna Convention on Consular Immunities 1963,160 the Diplomatic Privileges Act 1964 and the Consular Relations Act 1968 grant immunity from criminal jurisdiction to diplomats and consular ofcials. Equivalent immunities are extended to heads of state, their families and servants by Section 20 of the State Immunity Act 1988. In respect of nationals of a state party to the Rome Statute enjoying state or diplomatic immunity, the ICC Act 2001 provides that such immunity does not prevent proceedings under part 2 relating to arrest and surrender to the ICC.161 In relation to non-state parties, the Act provides for a procedure when the ICC is able to obtain a waiver of immunity.162 156

Sec. 22(2), ICC Act 2001. Sec. 22(3), ICC Act 2001. 158 Sec. 22, ICC Act 2001; Schedule 2, ICC Act 2001. 159 Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, entry into force 24 April 1964, 500 United Nations Treaty Series 95. 160 Vienna Convention on Consular Relations, Vienna, 24 April 1963, entry into force 19 March 1967, 596 United Nations Treaty Series 261. 161 Sec. 23(1), ICC Act 2001. The Explanatory Notes, para. 46 expresses the view that, in relation to each other State party, Art. 27 of the Statute constitutes an agreement that the immunities of its nationals ‘including its Head of State, will not prevent the trial of such persons before the ICC, nor their arrest and surrender to the ICC’. 162 Sec. 23(2), ICC Act 2001. Sec. 23 (3) provides that certication by the Secretary of State that a state is or is not party to the Rome Statute, or that a waiver has been given, is to be conclusive evidence of that fact. 157

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Provision is also made for the situation where the Security Council refers a situation to the ICC and overrides the immunities of those concerned.163 The impact of Section 23(4) is unclear; the provision provides the Secretary of State with a power, after consultation with the ICC and the state concerned, to direct that proceedings shall not be taken against a person who would normally enjoy diplomatic or state immunity (whether a state party to the Statute or not).164 There is no provision that prevents the surrender of British nationals to the ICC. The United Kingdom still retains life imprisonment for murder. Therefore no obstacle exists in relation to a request for surrender for a crime where life imprisonment is an available sentence. The ICC Act 2001 provides for the non-applicability of certain domestic legislation incompatible with the ICC Statute in relation to prisoners serving sentences imposed by the ICC, including those statutes providing for release on licence of those serving life sentences.165

4. Enforcement of Sentences Part 4 of the ICC Act 2001 provides the necessary procedures for accepting sentenced persons at the request of the ICC within the UK, including Scotland,166 although the UK has not indicated its willingness to accept sentenced persons.167 Schedule 7 of the Act modies existing legislation within the UK to ensure compliance with the procedural and substantive provisions of the ICC Statute. No additional provision has been made in order to ensure that the detention facilities meet international standards governing 163 Sec. 23(5), ICC Act 2001. Note also the complete removal of immunity as a bar to delivery in relation to the ad hoc international tribunals in Sec. 77, ICC Act 2001. 164 See the discussion in Cryer, ‘Implementation’, supra note 16, at 738, and the sources there cited. Cryer expresses the hope that the requirement of consultation with the ICC will prevent a breach of the Statute; however, if the ICC agrees that proceedings for delivery against a particular person are not necessary, it is difcult to see the utility of Sec. 23(4). 165 See further, infra notes 161–162 and accompanying text; see in particular Sec. 42(6) and Schedule 7, paras 3(1) and (2), ICC Act 2001 (rendering inapplicable certain provisions of the Crime (Sentences) Act 1997 and Sec. 23, Prisons (Northern Ireland) Act 1953). An equivalent provision exist in relation to Scotland: Sec. 24, ICC (Scotland) Act 2001. 166 If the Secretary of State is minded that a sentence should be served in Scotland, he must consult the Scottish ministers, who if they agree, will issue a warrant authorizing the bringing of the prisoner to Scotland (Sec. 42(2), ICC Act 2001). If the Scottish ministers do not agree, the sentence will be served in another part of the UK (Sec. 42(3), ICC Act 2001). 167 See ‘Progress Report by the United Kingdom’, Council of Europe Doc. Consult/ICC(2001)31, 7/9/2001, 4: ‘it is the UK’s intention to reach an enforcement of sentences agreement with the ICC.’ Note also the extension to the two ad hoc international tribunals of the provisions concerning acceptance of prisoners: Sec. 77(3), ICC Act 2001.

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the treatment of prisoners. However, conditions in the UK are generally regarded as meeting international standards. Provision for enforcing orders made by the ICC concerning nes and forfeitures is made by the ICC Act 2001 (Enforcement of Fines, Forfeiture and Reparation Orders) Regulations 2001 made under Section 49 of the ICC Act 2001.168 The Regulations provide that an order of the ICC must be registered by the High Court in order to be enforceable;169 once registered, the order is treated as if it were an order of the High Court.170 With a view to protecting the rights of third parties, the High Court will not enforce an order of the ICC unless it is satised that anyone with an interest in property which is the subject of an order has had an opportunity to make representations to the court, and that enforcement will not prejudice the rights of bona de third parties.171

IV. Conclusion The UK implementing legislation as a whole satisfactorily implements the obligations of the UK under the Rome Statute. Where there seem to be lacunae (e.g. with regard to duties to consult the Court), these obligations can be fullled without requiring specication in primary legislation. The only real point of concern is the power of the Secretary of State to halt proceedings in relation to persons who would enjoy diplomatic or state immunity.

168 S.I. 2001/2379, 29 June 2001. In Scotland, the power to make provision for enforcement of Orders is contained in Sec. 26, ICC (Scotland) Act 2001; no regulations have as yet been adopted. 169 S.I. 2001/2379, Reg. 4(2) (as amended by S.I. 2002/822). Upon receipt of an order from the ICC, the Secretary of State may appoint a person to act on behalf of the ICC for enforcing the order, and may direct that person to register the order (S.I. 2001/2379, Regs 3, 4(1)). 170 S.I. 2001/2379, Reg. 5 (as amended). 171 Sec. 49(5), ICC Act 2001.

Articles

Comparative Law and the US Supreme Court: Roper v. Simmons and the Quest for Theory Tobias Bräutigam* Juger, c’est comparer Marcel Proust

Introduction Whether comparative law as a discipline is of any use at all, or merely an intellectual Glasperlenspiel for emeriti and graduate students looking for a topic for their Master’s thesis,1 is one of the core questions in comparative law discourse. One possible compromise in the battle about the utilitarian value of comparative law seems to be its classication as an instrument auxiliaire, as an ancillary science.2 This avoids the pressing question of how helpful it actually is in resolving a practical dispute. But sometimes comparative law is more than just an ancillary science. In the United States Supreme Court decision Roper v. Simmons,3 comparative law had its day in court.4 Even though *

Research Fellow, The Erik Castrén Institute of International Law and Human Rights, Helsinki. I have beneted considerably from the comments of associate professor Jarna Petman, who has commented twice on drafts. Other useful help has been provided by docent Hagen Henry, professor Jan Klabbers, professor Martti Koskenniemi and professor Pia Letto-Vanamo. A draft of the paper was discussed during the Finnish Graduate School Winter Seminar in Lammi 2006. 1 Compare: Bernhard Großfeld, Macht und Ohnmacht der Rechtsvergleichung, (Mohr Siebeck: Tübingen, 1984) at 13; Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (3rd edn, Oxford University Press, 1998) at 13; William Ewald, ‘Comparative Jurisprudence (I): What was it like to Try a Rat?’, 143 University of Pennsylvania Law Review (1995) 1889-2149 at 1892 (‘the Muse Trivia — the same Goddess who inspires stamp collectors, accountants, and the hoarders of baseball statistics’); Catherine Valcke, ‘Comparative Law as Comparative Jurisprudence’, 52 American Journal of Comparative Law (2004) 713-740 at 714. 2 David Clark, ‘Nothing new in 2000? Comparative Law in 1900 and today’, 75 Tulane Law Review (2001) 871-911 at 883. 3 Roper v. Simmons, 125 S. Ct. 1183 (US Supreme Court, 2005). 4 Comparative law and foreign law arguments are not always easy to separate, as it is almost impossible

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this was not the rst decision referring to foreign law,5 it was the rst decision to do so extensively. The Supreme Court held that the Eighth Amendment6 prohibits the execution of juvenile offenders younger than 18 years, and based this nding, among other grounds, on comparative law arguments. Some observers have designated this judgment the ‘birth of a new comparative jurisprudence’,7 and it sparked a huge debate over the role of comparative law in American courts in general and, more particularly, its role in the Supreme Court. This article attempts to shed some light on the pros and cons of using comparative law as an argument in court cases. In so doing, I focus on explicit references to foreign law in the Supreme Court – being aware that in a globalized world, judges are constantly exchanging views and ideas via ‘transnational judicial networks’,8 with the result that, even when not expressly quoting foreign law, judges might still be inuenced by foreign legal thought. The rst part of this article sums up the facts of the case, while the second part turns to the criticism of the judgment and the use of comparative law before courts in general. The conclusion sums up the ndings.

Facts of the Case The facts and proceedings of the case as well as the reasoning of the Court are discussed in the following paragraph.

to refer to foreign law in a neutral way, without engaging in comparison. This difculty is generally acknowledged. See e.g. Ugo Mattei, ‘Some Realism about Comparativism: Comparative Law Teaching in the Hegomonic Jurisdiction’, 50 American Journal of Comparative Law (2002) 87-98 at 88; John Reitz, ‘How to do Comparative Law’, 46 American Journal of Comparative Law (1998) 617-636 at 618; Rudolf Schlesinger, ‘The Past and Future of Comparative Law’, 43 American Journal of Comparative Law (1995) 477-480 at 479. 5 Atkins v. Virginia, 122 S. Ct. 2242 (US Supreme Court, 2002) at 2249, footnote 21; Lawrence v. Texas, 123 S. Ct. 2472 (US Supreme Court, 2003) at 2481 and 2483; Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (US Supreme Court, 2004) at 2751. There are quite a few dissenting opinions referring to foreign law, see e.g.Printz v. United States, 117 S. Ct. 2365 (US Supreme Court, 1997) at 2404. For reference to history and rulings of state Courts, compare: Kathryn Perales, ‘It Works Fine in Europe, so why not here? Comparative Law and Constitutional Federalism’, 23 Vermont Law Review (1999) 885-907 at 887. 6 Eighth Amendment: ‘Excessive bail shall not be required, nor excessive nes imposed, nor cruel and unusual punishments inicted.’ 7 Roger Alford, ‘Roper v. Simmons and our Constitution in International Equipoise’, 53 UCLA Law Review (2005) 1-27 at 3. 8 Anne-Marie Slaughter, A New World Order (Princeton University Press, 2004) at 17 and 65-103.

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Facts and Proceedings of the Case9 Christopher Simmons, the respondent, committed murder in 1993 when he was 17 years of age. The murder was discussed beforehand among his peer group; the respondent bragged about his plan to break into a house, tie the victim up, and throw her over a bridge. He assured his friends they could ‘get away with it’ because they were minors. A jury in Missouri found the respondent guilty of burglary, kidnapping, stealing, and murder in rst degree, and recommended the death penalty. The trial judge accepted the jury’s recommendation and imposed the death penalty. This decision was upheld in a second trial and conrmed by the Missouri Supreme Court.10 Federal courts rejected Simmons’ petition for a writ of habeas corpus,11 and the Supreme Court refused at rst to hear a similar case.12 After the Supreme Court had decided in Atkins that the Eighth and Fourteenth Amendments prohibited the execution of a mentally retarded person,13 the respondent led a new petition for state post conviction relief to the Missouri Supreme Court, arguing that the reasoning adopted by the court in Atkins had established that the execution of a person who was a minor at the time the crime was committed was prohibited by the Constitution. The Missouri Supreme Court agreed.14 The Supreme Court of the United States agreed to hear the case and conrmed the judgment of the Missouri Supreme Court in a 5: 4 decision.15

Reasoning of the Court The case centred around the question of how the Eighth Amendment of the American Constitution, which is applicable in the states through the Fourteenth Amendment, should be interpreted. The Eighth Amendment reads: Excessive bail shall not be required, nor excessive nes imposed, nor cruel and unusual punishments inicted.16

The legal question before the Supreme Court was to decide whether the juvenile death penalty is a ‘cruel and unusual punishment’. The majority opinion, written by Justice Kennedy, justied its decision in three major argumentative steps: it 9

More details about the facts of the case can be found at: Roper v. Simmons, supra note 3, at 1185-1190. State v. Simmons, 944 S.W. 2d 165 (Missouri Supreme Court, 1997) at 169. 11 Simmons v. Bowersox, 235 f.3d 1124 (United States Court of Appeals, Eighth Circuit, 2000) at 1127. 12 Trevino v. U.S., 121 S.Ct. 1364 (US Supreme Court, 2001). 13 Atkins v. Virginia, supra note 5. 14 State ex. rel. Simmons v. Roper, 112 S.W. 3d 397 (Missouri Supreme Court, 2003). 15 Roper v. Simmons, supra note 3, at 1192-1194. 16 Emphasis added. 10

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looks into state law, discusses psychological ndings, and nally makes the foreign law argument. After summarizing its own judgments on the death penalty and the Eighth Amendment, the Court rst looked at the law of the states concerning the death penalty and minors. It found that a majority of 30 states out of 50 had either abolished the juvenile death penalty or the death penalty altogether. The majority opinion concluded that there was evidence for the existence of a new national consensus, which was sufcient to overrule Stanford.17 A synopsis of different state law was given in an annex. In its second argumentative step, the Court discussed psychological ndings, dealing with the differences between minors and adults. Having completed these rst two steps of argumentation, the Supreme Court turned to foreign law. It argued that the United States was the only country in the world that continued to give ofcial sanction to the juvenile death penalty.18 This argument is introduced by referring to the United Nations Convention on the Rights of the Child, which every country in the world has ratied save the United States and Somalia.19 Article 37 of this convention prohibits capital punishment for crimes committed by juveniles under 18. Although the majority opinion stressed that this analysis of foreign law would not be decisive in its task of interpreting the Eighth Amendment, it put forward the fact that the Court had referred to foreign law on several occasions in other cases.20 The opinion states: It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty […]. The opinion of the world community, while not controlling our outcome, does provide respected and signicant conrmation for our own conclusions.’21

The Supreme Court went on to make particular reference to the law of the United Kingdom, and examined when and for what reasons the juvenile death penalty was abolished in the United Kingdom. It justied this reference by pointing out the history the two countries share, and the history of the Eighth Amendment itself – it was modelled on a parallel provision in the English Declaration of Rights of 1689.

17

Stanford v. Kentucky, 109 S. Ct. 2969 (US Supreme Court, 1989). This part of the reasoning can be found in: Roper v. Simmons, supra note 3, at 1198-1200. 19 Convention on the Rights of the Child, New York, 20 November 1989, in force 2 September 1990, 1577 United Nations Treaty Series 3. 20 Although those precedents mentioned the opinion of the world community only cursorily, compare e.g. Atkins v. Virginia, supra note 5, at 2249. 21 Roper v. Simmons, supra note 3, at 1200. 18

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Discussion, Criticism, and Comments There is much support22 for, but even more criticism23 of the judgment and of the idea of applying foreign law in US courts in general. The main criticisms of the judgment and justications for it are summed up in the following section. General objections to the reasoning used in the judgment are discussed, before turning specically to questions relating to the comparative law argument. After general criticism, the article takes a closer look at different theories, which seek to explain the Supreme Court’s rationale for turning to comparative law. Thirdly, the questions, which have to be answered when engaging in a comparative law analysis, will be discussed. Finally, the consequences of applying comparative law in court cases will be discussed.

Criticism of the Majority Opinion by the Dissenting Opinions There were two different dissenting opinions: the rst24 by Justice O’Connor, and the second by Justice Scalia25, with whom the Chief Justice Rehnquist and Justice Thomas joined. The general criticism in those opinions will be now briey summarized – the criticism which deals with the use of foreign law as an argument will be examined extensively later on. Firstly, both dissenting opinions criticize the rst argument of the majority that a national consensus had evolved is challenged massively by the dissenting opinions. According to Justice O’Connor there is insufcient evidence of the existence of a new nationwide consensus which has emerged in the last 16 years since the Supreme Court last dealt with the juvenile death penalty.26 Even though the Supreme Court was allowed to reverse its own judgments,27 this would only make sense if there was a signicant change in the number of states which allow or ban juvenile executions. Justice Scalia 22

For support of using comparative law before the US Supreme Court see Harold Hongju Koh, ‘International Law as Part of our Law’, 98 American Journal of International Law (2004) 43-57; Vincent Samar, ‘Justifying the Use of International Human Rights Principles in American Constitutional Law’, 37 Columbia Human Rights Law Review, (2005) 1-100; Slaughter, A New World Order, supra note 8, at 78; Jeremy Waldron, ‘Foreign Law and the Modern Ius Gentium’, 119 Harvard Law Review (2005) at 129-147. 23 For criticism of the judgment see Richard Posner, ‘Foreword: A Political Court’, 119 Harvard Law Review (2005) 35-102 at 43. For criticism in general see Roger Alford, ‘Misusing International Sources to Interpret the Constitution’, 98 American Journal of International Law (2004) at 57-69. 24 Roper v. Simmons, supra note 3, at 1206-1217. 25 Ibid., at 1217-1230. 26 Stanford v. Kentucky, 109 S. Ct. 2969 (US Supreme Court, 1989). 27 At this point of their reasoning, both dissenting opinions criticized the Missouri Supreme Court for pronouncing on the case, as the facts were very similar to the aforementioned Stanford v. Kentucky case. Thereby the Missouri Supreme Court disregarded the fact that reversing is the prerogative of the Supreme Court alone.

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sides with Justice O’Connor in holding that the majority opinion misinterprets the numbers which indicate whether there is a national consensus on the abolishment of the juvenile death penalty. He argues that if one counted only the states in which the capital punishment is permitted, no nationwide consensus against the juvenile death penalty would be found – on the contrary, there were even some states which recently conrmed the possibility of capital punishment in some circumstances. The second objection concerns the generalization implied in the psychological reasoning of the majority. According to the dissenting opinions, it had not been shown that all 17-year-old adolescents are so immature that they should not be sentenced to death. By banning the juvenile death penalty altogether, it was not possible for judges or juries to assess the individual case of a 17-year-old cold-blooded murderer who was, potentially, fully aware of the nature of his deed. More fundamentally, Justice Scalia criticizes the fact that the majority overrides state legislation and replaces it with its own moral statements, thereby taking the role of a moral arbiter. What are the consequences of this criticism? The dissenting judges convincingly challenge the rst two arguments of the majority opinion: the argument that a new national consensus had evolved during the last 16 years since Stanford and, secondly, the ndings of the literature of psychology about the maturity of juveniles. Taking this criticism seriously would mean that the comparative law argument in the decision is more than just the icing on the cake – it would indeed be the decisive part of the court ruling. This is a surprise because when we think about sources of law, it seems that there is an inherent bipolarism: there is hard and there is soft law; there is conclusive authority and rhetorical arguments; there are recommendations and there are decisions, directives, and regulations.28 So far it seemed to be accepted knowledge that comparative law is always in the second category – it is cited to conrm, to back up, and to support an already established view. This is illustrated by the following quote from the majority opinion: The opinion of the world community, while not controlling our outcome, does provide respected and signicant conrmation for our own conclusions.29

The criticism voiced by the dissenting opinions shows that the world community provides something else than just a conrmation, as the rst two arguments of the majority opinion are highly controversial. So what is behind the Supreme Court’s interest in foreign law?30 28

In European Law, compare Article 249 EC Treaty. Roper v. Simmons, supra note 3, at 1200. 30 Apart from feeling more comfortable when the Supreme Court judges can prove that they are in line with other judgments. As one observer puts it: judges might be even ‘embarrassed to make moral 29

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Dancing in the Dark: the Quest for Theory The First Choice: Deciding Whether to Make the Foreign Law Argument Why turn to foreign law for an answer?31 Is there an underlying theoretical concept which makes the Supreme Court apply foreign law? Is it a new source of law or just irrelevant coloration? A new legal concept would be needed in order to explain the use of foreign law. Some observers32 have attempted to detect the theory behind the comparative analysis of the Court, which itself does not discuss its method nor provide an obvious theoretical basis to justify the practice.33 Before entering into the discussion of the policy or theory behind the use of foreign law, it is worth pointing out that the rst choice a court has to make is whether to look at foreign law at all. On rst analysis one could think about areas which are especially appropriate for comparative law analysis; such as constitutional law, which involves fundamental values possibly shared by a wider community. Other areas seem to be untouched by comparative law. But even when one agrees that constitutional law is the realm of comparative law – with certain exclaves in other elds34 – courts do not always turn to comparative law when questions of constitutional law come up. The comparative law argument is still very seldom used – in the United States as well as abroad. Justice Scalia points out that there are several areas of law where the Supreme Court would scarcely engage in comparative law argumentation.35 He gives several examples of situations in which the United States is the only state or among a small number of states with certain legal constructions. The rst of these concerns the precedent-based exclusion rule on evidence gained as a result of unlawful searches or police misconduct – the so-called ‘fruit of the poisonous tree’ doctrine.36 This pronouncements in their own voice’. See Waldron, ‘Foreign Law and the Modern Ius Gentium’, supra note 22, at 138. 31 Richard Posner argues that judges like most lawyers are citing in order to ‘conceal the subjective and unstable character of much legal reasoning’. Richard Posner, ‘Could I Interest You in Some Foreign Law? No Thanks we Already have our Own Laws’, 2004-Aug Legal Affairs 40-43 at 40. This applies also to citing foreign law. 32 Alford, ‘Our Constitution in International Equipoise’, supra note 7, at 9; Waldron, ‘Foreign Law and the Modern Ius Gentium’, supra note 22, at 130. 33 Alford, ‘Our Constitution in International Equipoise’, supra note 7, at 1; see also Waldron, ‘Foreign Law and the Modern Ius Gentium’, supra note 22, at 129. 34 Terms like good faith in trade law or due process in penal law might be interpreted against the background of constitutional rights. 35 Roper v. Simmons, supra note 3, at 1227; Statement of Antonin Scalia, ‘A Conversation between U.S. Supreme Court Justices’, 3 International Journal of Constitutional Law (2005) 519-541 at 521. 36 Mapp v. Ohio, 81 S. Ct. 1684 (US Supreme Court, 1961).

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doctrine is not widely accepted in other countries. The same goes for the strict separation of state and religion.37 Another example is abortion, which is allowed in the United States until the point of viability – an exceptionally late stage for abortion in comparison to other states.38 In all those cases, the Supreme Court did not look at foreign law but relied only on US-American cases and doctrine. No convincing theory is to hand as to why the Supreme Court did not take a look at foreign constitutional law in those cases but took it into account in Roper v. Simmons. As the Supreme Court does not give any indication of why it turned to foreign law, the eld is open for speculation. In the following sections, different theories are examined, which may provide elucidation of the theoretical background underlying the reasoning of the Court. Universality of Legal Notions Among others, Professor Roger Alford has attempted to answer the question of the theoretical concept of the Supreme Court. He proposes originalism, pragmatism, majoritarianism, and natural law as possible explanations for the Supreme Court’s reasoning. The only one of these capable of being discussed at length is the last one – natural law. The rst two, at least, seem rather inappropriate, and all propositions but natural law are rejected by Alford.39 Universality as a notion expresses the idea that certain key concepts are common to all mankind. Those legal concepts are valid under all circumstances and apply to all cultures. In the US context, universalism can be traced back to the Declaration of Independence, which refers twice to values of universality and natural law in the very rst paragraph.40 Firstly, the drafters mention the ‘law of Nature and of Nature’s God’ to justify the idea of equality among the nations; in a second instance the Declaration of Independence refers to the opinions of mankind, which should be respected. This lofty verbiage was used in order to mark the importance of the event and to establish the American People as an independent entity in the world of 1776. There is some evidence that the Supreme Court at least discussed the concept of universalism during its deliberation. Justice O’Connor mentions in her dissenting 37

Rosenberger v. Rector and Visitors of University of Virginia, 115 S. Ct. 2510 (US Supreme Court, 1995). See, in support, Alford, ‘Misusing International Sources’, supra note 23, at 68. 39 Alford, ‘Our Constitution in International Equipoise’, supra note 7, at 9. 40 The rst paragraph of the Declaration of Independence of 1776 reads: ‘When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.’ 38

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opinion the special character of the Eighth Amendment, which, according to her, draws its meaning directly from the maturing values of civilized society.41 She goes on to link this with the nation’s understanding of human dignity, which was neither wholly isolated from nor inherently at odds with the values prevailing in other countries. Richard Posner also argues that the decision is partly based on a universal understanding of law, which the Supreme Court shared. If one presupposed the existence of universal principles of law, it would be only natural to look at decisions made in foreign courts.42 Whereas Justice O’Connor supports the idea that universal ideas about human dignity exist and could be relevant, Posner criticizes the decision because he regards the idea that a supranational consensus could be established as naïve: … to cite foreign decisions as precedents is indeed to irt with the idea of universal natural law, or, what amounts to almost the same thing, to suppose fantastically that the world’s judges constitute a single, elite community of wisdom and conscience.43

Justice Scalia attacks the notion of universalism as such. According to him, the American legal system is fundamentally different from other systems.44 Even if one does not share Justice Scalia’s pointed critique, there are some fundamental problems with the concept of universal law. Whilst the idea of a natural law, shared by all people around the globe, has a certain appeal, it is not hard to see that there are great difculties associated with universality. Even if there were a core of principles so fundamental that all human beings could agree on them, it would still be very hard to delimit the exact scope of the law and the principles according to which disputes arising from it should be resolved. Judicial hegemony and substantive indeterminacy are the great risks inherent in this approach.45 Article 38 of the Statute of International Court of Justice provides an example of the problems posed by the idea of one law common to all peoples: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: … c. the general principles of law recognized by civilized nations; 41

Roper v. Simmons, supra note 3, at 1215. Posner, ‘Foreword: A Political Court’, supra note 23, at 85. Similarly, Alford, ‘Our Constitution in International Equipoise’, supra note 7, at 17. 43 Posner, ‘Foreword: A Political Court’, supra note 23, at 85. 44 Roper v. Simmons, supra note 3, at 1226-1229. See the even more clear statement of Justice Scalia at a conference: Statement of Scalia, ‘Conversation’ supra note 35, at 521 (‘[...] we don’t have the same moral and legal framework as the rest of the world’). 45 Alford, ‘Our Constitution in International Equipoise’, supra note 7, at 17. 42

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Apart from the difculty of dening what a civilized nation is, it is extremely hard to nd principles which all nations share. In practice, tribunals exercise considerable discretion on the matter.46 In the textbooks on international law as well as in the decisions of the International Court of Justice, general principles are mentioned as a source very sparingly.47 Where they are explicitly identied in textbooks, only the most general legal provisions are presented. Hugh Thirlway mentions only the principles of pacta sunt servanda, lex specialis derogat legi generali and lex posterior derogat legi priori. Tim Hillier48 names some examples of general principles of law, such as the principle of estoppel and equity, as well as the principle that any breach of an engagement involves an obligation to make reparation. These rules are so general in nature that they always have to be interpreted and will per se not be decisive. It is much easier to agree on general principles in abstract terms (‘protection of human rights’) than it is to say what those principles mean in any given case. This is not only true for international law and for the interpretation of Article 38 of the Statute of International Court of Justice; it applies just as well to the rulings of the Supreme Court. Ius Gentium Maybe a rened theory of universalism could do the trick and provide a convincing theory justifying the application of foreign law? Jeremy Waldrom suggests Ius Gentium as an appropriate underlying theory for the Supreme Court.49 He understands Ius Gentium to mean the common law of mankind on all possible kinds of issues, such as contract, property, crime, or tort – a consensus which was established among law practitioners around the world, comparable to prevailing theories in natural science.50 It seems closely connected to the old argument used to justify comparative law: that is, looking at foreign law enables us to avoid making mistakes and to nd better solutions.51 This view could be considered as an explanation for the way in which the Supreme 46

Ian Brownlie, Principles of Public International Law (6th edn, Oxford University Press, 2003) at 16. Hugh Thirlway, ‘The Sources of International Law’ in Malcolm Evans (ed.), International Law (2nd edn, Oxford University Press, 2006) at 128. 48 Tim Hillier, Sourcebook on Public International Law (Routledge Cavendis: Oxford, 1998) at 92-93. 49 Waldron, ‘Foreign Law and the Modern Ius Gentium’, supra note 22, at 132. 50 Ibid., at 133. Waldron’s understanding is therefore much broader than the classical understanding of Ius Gentium. Compare with Malcolm Shaw, International Law (5th edn, Cambridge University Press, 2003) at 15. 51 Perales, ‘It Works Fine in Europe’ supra note 5, at 901. A new twist to the old universal law debate is added by Anne-Marie Slaughter. She stresses the importance of all kinds of networks between regulators, judges and even legislation. Compare with the horizontal and vertical networks of national constitutional courts Slaughter, A New World Order, supra note 8, at 100 et seq. 47

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Court proceeded. What connects US-American legal thinking with European law is not will, but the reason and experience behind the laws. The will of a people is expressed through legislation and manifested in laws. While the will of foreign people can have no inuence on the Supreme Court, reason and certain experience are truly universal. Waldrom argues that we should look for foreign law solutions in cases like Roper v. Simmons, in the same way that we should search out all possible research that has been done when we are ghting an epidemic: law, in this sense, is therefore comparable to the natural sciences.52 Even though this argumentation seems plausible at rst glance, there are several problems with it. First of all, there is no established body of rules of Ius Gentium one could take a look at – unless one wishes to construe the term so widely as to make it practically meaningless, and include all possible conventions and treaties in international law. Even this wide approach would not work, since many conventions are only signed by a minority of states and ratied by an even smaller number. Secondly, after a little while the analogy with natural science only serves to bemuse us – once the clouds of the metaphor vanish into the air, we see that one cannot compare natural science and the humanities. For instance, it is almost the core of adjudication to give rules on conict of interests. Usually, the interests are both legally recognized, as for example in abortion cases the right to live of the child and the freedom of action of the mother. Even pro-choice activists would agree in general terms that human life should have some kind of legal protection, and vice versa pro-life activists would hardly challenge freedom of action as a general concept. Disagreement arises only in cases of conict between two objects of legal protections. Society has to make a choice about which interests will prevail in situations of conict. The same goes for many other conicts, such as, for example, the conict between legal certainty and the protection of consumers when the validity of dubious contract clauses is at stake. Law is about moral choices: these vary on and off and differ from one society to another. Reason and experience from other countries certainly can provide models for legislation, but seem insufcient when deciding fundamental moral questions in courts. Majoritarianism As it appears to be impossible to detect such justications from eternal or common ideas as universalism in all its facets is striving for, why not consider majoritarianism as a possible underlying theory supporting the Supreme Court’s recourse to foreign law? It is, after all, an argument used by the Supreme Court in Roper v. Simmons by the

52

A similar analogy is drawn by Perales, ‘It Works Fine in Europe’ supra note 5, at 901, comparing law e.g. to the study of literature, art, and music.

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majority53 as well as by the dissenting opinion.54 In the second line of argumentation used in the judgment, the majority opinion takes up the argument that a majority of states forbids the imposition of the death penalty on juvenile offenders.55 The Supreme Court enters into a comparative law effort en miniature and nds that 30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach.56

A clear-cut case? The dissenting opinion disagrees ercely: only those states which adopted the death penalty in the rst place should be counted, otherwise it would be like including old-order Amishmen in a consumer-preference poll on the electric car. 57 As there are 38 states that retain the death penalty, applying the logic of the dissenting opinion would leave us with 18 states out of those 38 which by express provision or judicial interpretation exclude juveniles from the capital punishment. A minority, as Justice Scalia points out, characterising the national consensus of the Court as a ‘faux majority’.58 Even if one did not side with the dissenting opinion’s rationale on the determination of the correct basis of calculation in this particular case,59 it is obvious that majoritarianism is not as objective as the Court’s reasoning seems to suggest. There are at least three sets of questions which have to be answered. To begin with: should the majority of the states or majority of the people tip the scale? Those questions deeply touch upon questions of state sovereignty, democracy, and federalism.60 Secondly, it is 53

Roper v. Simmons, supra note 3, at 1192 and 1203-1205. Annexed to the majority opinion are several tables, indicating the states in support of and against the death penalty, noting possible restrictions for juveniles as well as other minimum ages, e.g. for marriage, voting or jury service. 54 Ibid., at 1218. 55 Compare e.g. Atkins v. Virginia, supra note 5, at 2243 et seq. 56 Roper v. Simmons, supra note 3, at 1192. 57 Ibid., at 1218. 58 Ibid., at 1219. 59 Applying the same reasoning to a ctitious scenario shows the limit of this argumentation. Let us suppose all but one state had abolished the death penalty. Let us further suppose this state also executed juvenile offenders. According to Justice Scalia, in this case, an overwhelming majority of states would allow the execution of juveniles. The example seems to indicate, that dividing states into categories of competent and incompetent on certain questions is a awed endeavour, at least when looking for a national consensus. 60 Similar problems in this regard affect all federal systems and also the European Community, which in its decision making process is always caught between the logic of one state one vote and the weighting of votes according to the population of the member states. See Article 205 EC Treaty and the Protocol on Enlargement of the European Union. The compromise reached is complicated, including several majorities which have to be met.

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open to discussion how strong the majority should be. Should it be an overwhelming majority with just a few persistent objectors, or is a simple majority enough? The third set of question is maybe the most interesting one: should one take into account a change in practice and legal opinion?61 More precisely: in order to establish a national consensus, does the rate of change matter?62 Those questions would be nothing more than pettifogging quibbles when it comes to criticizing how courts use comparative law, were it not for the fact that they are discussed by scholars worldwide. Taking a look at the European Court of Human Rights, we see them surfacing frequently.63 As Carozza pinpoints, the European Court of Human Rights is constantly balancing three principles: the autonomous interpretation of the European Convention of Human Rights, the dynamic approach to the convention, and, nally, judicial restraint.64 With the help of those interpretive tools, all possible outcomes can be achieved.65 Comparative law is used in order to justify solutions which would prioritize one principle over another; for example, to decide against judicial restraint and in favour of a dynamic interpretation of the Convention. Cases like Marckx v. Belgium66 or B. v. France67 are just two examples among many in which the European Court of Human Rights has had to weigh up those interests, and did so by surveying the practice of the contracting states – and trying to identify a consensus among them. Step by step, the Strasbourg Court forms a ‘Euro-consensus, a European democratic society in aggregate’68 It is a very delicate business to form e pluribus unum,69 be it before the European Court of Human Rights, giving rulings of relevance for at least 46 member states of the Convention or be it before the US Supreme Court with 50 states and the District of Colombia.

61

Alford, ‘Our Constitution in International Equipoise’, supra note 7, at 14. Compare: Roper v. Simmons, supra note 3, at 1193. 63 Paolo Carozza, ‘Uses and Misuses of Comparative Law in International Human Rights: Some Reections on the Jurisprudence of the European Court of Human Rights’, 73 Notre Dame Law Review (1998) 12171237. 64 Ibid., at 1219. 65 Olivier de Schutter, ‘L’interpretation de la Convention Européenne des Droits de L’Homme: Un Essai de Démolition’, 70 Revue de droit international, de sciences diplomatiques, politiques & sociales (1992) at 92. 66 Marckx v. Belgium, ECHR Series A (1979), No. 31. 67 B. v. France, ECHR Series A (1992), No. 232. 68 Jarna Petman, ‘Human Rights and Democracy: Marking the Boundaries of Community’, in Identity, Difference and Human Rights (the Third International Conference on Human Rights) (Centre for Human Rights Studies, Mod University, Qom) (forthcoming in 2007). 69 The former motto of the United States of America, meaning: From many one. 62

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Posner Meets Critical Legal Studies: the Supreme Court as a Political Court Maybe in our quest for theory, we should search in profaner areas than the Olympic heights of universality and take a look at the earthly situation in which the Supreme Court is placed when deciding constitutional law cases. When constitutional law cases reach the Supreme Court, on most occasions highly controversial issues will be involved; such as abortion, the role of religion in public life, or, as in Roper v. Simmons, the question of the death penalty. Parties to those conicts have strong opinions about their case and are organized in a very professional way.70 They have already fought over the issues for a long time and will continue ghting after the decision is rendered. In other words, the issues are fundamentally political and both sides have strong arguments supporting their views. In the end, there is no sole legally correct answer and the Supreme Court cannot pronounce the nal truth. This is evidenced by two facts. Firstly, the Supreme Court is often split on key issues and decides by 4:5 vote. Secondly, in some instances, the Supreme Court has overruled its own judgments. Both of these facts are evidenced in Roper v. Simmons, in which a 5:4 majority overruled Stanford and reached a decision opposite to the one reached 16 years before. Richard Posner therefore describes the Supreme Court as a political court.71 He understands the term political not in a partisan sense, but more in the sense implied by a constitutional organ which has enormous legislative power, acting in fact in constitutional cases ‘lawless’, in an ‘ocean of discretion’.72 In Posner’s view, nothing in the Constitution compelled the Supreme Court judges to decide for or against the juvenile death penalty, since the language used in the Eighth Amendment is so wide. Posner therefore nds himself in unusual company with the proponents of critical legal studies.73 The conclusion that the Supreme Court decides its cases in the manner of a political organ, at least in constitutional matters, is not very surprising. What is puzzling is that the Supreme Court does not put its cards on the table, call the disputes fundamentally political and admit that its judgment is largely inuenced by the opinions of the judges and not by law in the strict sense of the word.74 In fact, 70

Concerning the death penalty: <www.prodeathpenalty.com/> (pro death penalty), <www.deathpenaltyinfo. org/> (against the death penalty); concerning abortion: <www.all.org/> (against abortion), <www.naral. org/> (pro abortion). All these websites were last visited on 2 November 2006. It is interesting to note that those pressure groups view themselves as engaged in a longer project, which includes the use of all possible political and legal means. 71 Posner, ‘Foreword: A Political Court’, supra note 23. 72 Ibid., at 40. 73 Compare: Duncan Kennedy, A Critique of Adjudication. Fin de siècle (Harvard University Press, 1998). 74 Indeed Justice Scalia mentions the problem when he says that in citing foreign law, the judge looks for the best solution to a social problem, but not necessarily for an answer based on the constitution.

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the court’s political nature is hidden under solemn legal language. The judges take the stand that their work is one of legal construction without reference to ideology, even if this kind of pure argumentation is seldom achieved.75 Judges, especially those dealing with foreign and international law are caught between the commitment to neutral rules and the experience that those rules never sufce to solve the cases – ‘ideology’ is part of the job.76 Justice Breyer would certainly object, as he thinks that [n]o judge believes that he or she is there to advance an ideological point of view. If I nd that I reach a result simply because I think it “morally good” then I am not doing my job.77

This is, however, the same judge who quoted judges from Zimbabwe and India to support his view that spending an extremely long period on death row is a cruel and unusual punishment, even though there was no US-American case law that supported this nding.78 There seems to be a need to nd ‘judgments’, as competent legal material, instead of just saying bluntly that one is of the opinion that it is cruel to let someone wait for more than 20 years before their execution. This arbitrary outcome cannot be avoided by turning ad fontes. Textualists like Justice Scalia should not fool themselves that they are on the safe, ideology-free side if they just keep looking at the meaning of a phrase when it was adopted.79 The whole debate about the up and downsides of textualism and, respectively, originalism cannot be examined here, but a few remarks should be enough to illustrate the inherent bias textualism cannot escape.80 Textualists hold that when interpreting the Constitution one should try to ‘understand what [the Constitution] Compare: Statement of Scalia, ‘Conversation’, supra note 35, at 526. 75 Kennedy, A Critique of Adjudication, supra note 73, at 4 and 155. 76 Martti Koskenniemi, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’, in United Nations, Collection of Essays by Legal Advisers of States, Legal Advisers of International Organisations and Practitioners in the Field of International Law (1999) at 495-523. 77 Statement of Stephen Breyer, ‘A Conversation between U.S. Supreme Court Justices’, 3 International Journal of Constitutional Law (2005) 519-541 at 536. 78 Knight v. Florida and Moore v. Nebraska, 528 U.S. 990 (US Supreme Court, 1999), dissenting opinion by Justice Breyer. 79 Justice Scalia has set forth his views on textual interpretation of the Constitution in countless judgments, among those Thompson v. Oklahoma, 108 S. St. 2687 (US Supreme Court, 1988) at 2714 and notably Roper v. Simmons, supra note 3, at 1222. 80 See e.g. Jonathan Molot, ‘The Rise and Fall of Textualism’, 106 Columbia Law Review (2006) 1-66; Bret Boyce, ‘Originalism and the Fourteenth Amendment’, 33 Wake Forest Law Review (1998) 901-1033; Antonin Scalia, ‘Originalism: The lesser evil’, 57 University of Cincinnati Law Review (1989) 849-865. For a deeper study compare: Johnathan O’Neill, Originalism in American Law and Politics. A Constitutional History (John Hopkins University Press: Baltimore, 2005).

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meant, what it was understood by the society to mean when it was adopted’.81 This is, with due respect, as open to discussion as any other legal interpretation; with the difference that the dead founding fathers cannot speak up to defend the meaning they – or rather their fellow citizens – attributed to the Constitution. What sources should a judge consult in order to nd the ‘true’ understanding ordinary citizens had 220 years ago? The rst problem with this approach is to dene what ordinary citizen is. Would the opinion of women count? What about the black slaves? Should they be excluded because they did not form part of society?82 Closely connected to this problem is the question of existing sources. Only a certain class of people might have been in a position to express themselves on their understanding of the Constitution in an enduring form still available to the public today. It would be a coincidence if those documents exactly reected the prevailing opinion of the time. There are other open questions. If contradiction was discovered between two comments, which would be deemed more ‘typical’ of the time? What should be done if there is no comment at all, as the problem was simply not topical at the time? Would that mean that the provision is in accordance with the Constitution or should one try to transpose similar concepts? Finally, only very few words can be understood without prior knowledge, such as delays, for example 30 days, or the sex of a person.83 Most words are ambiguous,84 and denitions of those terms consist again of ambiguous words. This criticism is not addressed against formalist approaches to interpretation as such, but to the posture that this approach is exempt from any value statements. Textualism shares, therefore, the same problems as comparative law and other methods of interpreting the law. In Roper v. Simmons, the majority of the Supreme Court relies on legal language to substantiate its judgment and inherent value statements. It starts off with the Eighth Amendment, quotes numerous cases, and returns to the Constitution, which is ‘honoured’85 in the majority opinion. In this language of law, comparative law gives 81

Statement of Scalia, ‘Conversation’, supra note 35, at 525. A similar discussion about the ‘correct’ historiography takes place in popular history books, compare: Howard Zinn, A people’s history of the United States (New Edn Harper Perennial Modern Classics: New York, 2003) and Larry Schweikart and Michael Allen, A patriot’s history of the United States (Penguin Group: New York, 2004). Both works have political motivation in unveiling the ‘real’ history and rebutting other views. 83 And some scholars would challenge even this; see e.g. Judith Butler, Bodies That Matter: On the Discursive Limits of ‘Sex’ (Routledge: Oxford, 1993). 84 This is especially true for the Amendments to the Constitution, take for example words like: speech, establishment, unreasonable, excessive, cruel. 85 Roper v. Simmons, supra note 3, at 1200. 82

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additional vocabulary to the Supreme Court. The possibility of relying on comparative law enlarges the latitude of the judgment.

Here, There and Everywhere: Choosing the Appropriate Object of Comparison Even when one agrees that comparative law argumentation should in principle be used in court cases, the manner in which the comparison is made might still poses some serious questions. In the following, I will not dwell upon fundamental methodological questions of comparative law studies at length, but will pick the two quintessential questions which have to be answered by courts before making the comparative law argument.86 What Is Law? The question might sound a bit theoretical and has already been dealt with ad nauseam, but it has enormous practical consequences for the comparative law argument. Could a court take, for example, an international convention which a vast number of states have ratied as evidence of a certain international opinion? The Supreme Court takes the ratication of the United Nations Convention on the Rights of the Child as a proof that in fact no executions of minors took place in those countries.87 Is this a valid proof, or should one rather take a look into the state practice and examine whether all states comply with the law they accepted as binding upon them?88 It seems that the old problem of comparative law surfaces here. Is law only the written law, solemnly declared – or is it rather what people do on a day-to-day basis? It is evident that making a comparative law argument requires a lot of research and understanding of different foreign law systems – which consumes resources. Often the judges might not be competent to make an elaborate study, and ends up engaging in ‘haphazard comparativism’89 or ‘bricolage’.90 It is easy to misunderstand foreign law, as language barriers, problems of translation, and cultural differences 86

For a how-to manual with nine principles compare: John Reitz, ‘How to do Comparative Law’, 46 American Journal of Comparative Law (1998) 617-636. 87 The de facto executions of signature states like China, Congo or Iran are not even discussed, compare: Roper v. Simmons, supra note 3, at 1199. 88 There is at least evidence that China and Iran executed child offenders until 2004. Compare: <web. amnesty.org/pages/deathpenalty-children-stats-eng> (last visited on 2 November 2006). 89 Alford, ‘Misusing International Sources’, supra note 23, at 64. 90 Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’, 108 Yale Law Journal (1999) 1225-1309 at 1286.

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block direct access to foreign law. In some instances, it might be extremely difcult, or even impossible, to obtain accurate data – as, for example, in authoritarian regimes like North Korea or Vietnam. In other instances, there is just no data available, due to there being no or only a very weak central regime; as, for example, in Yemen or Sudan. Put more plainly: it is hard to compose a convincing comparative law study. Does that mean that the fact that an overwhelming majority has ratied a convention is insignicant, as Justice Scalia seems to suggest?91 There are at least some doubts over whether Scalia’s conclusions are imperative. One could also take signature and ratication as an indication for the opinio juris rather than as evidence for the state practice. It shows that a vast number of states are reluctant to publicly announce that they will execute people who were minors at the time when the crime was committed. As many conventions fail to enter into force for lack of ratifying states, one has to concede the importance of a convention which most states signed and ratied. However, this reading of conventions should always be balanced with accurate data on the practice. Which Foreign Law Should a Court Look at, When Undertaking a Comparison of Law? There is another substantial problem: if one deems foreign law suitable in the domestic context, which foreign law should one invoke? Basically, there are only two possibilities. One either looks at all countries or orientates oneself only towards countries which one feels close to or which one thinks are important. In discussing foreign law, the judge has to decide whether he or she deems all legal systems to be on the same level and just looks at a number of countries or whether he or she adopts for a qualitative approach. Arguments can be found for both sides. The quantitative approach avoids cherry-picking, which is the obvious fault of the qualitative approach. It provides convincing authority when a vast majority treats a problem similarly. This can be indicated by the ratication of a plurality of states. However, the approach fails in practice: it is very seldom that a vast majority of states agree on a common position. Even if there is broad agreement, it will seldom be on specic questions. Unless there is a UN convention on the topic under scrutiny, it would take a lot of effort to look at the laws of the 192 Member States of the UN. The qualitative approach seems at rst easier to justify: one could take only democracies or countries with which one shares historic ties. It is more in line with a general understanding that there are different legal cultures and that one might expect different solutions, depending on conditions such as climate, geography, or 91

Roper v. Simmons, supra note 3, at 1226.

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the temperament of the people living in a particular country.92 Even if one does not make reference to geography, it is well established that there are different ‘legal families’.93 There is, however, some criticism of this approach: it opens the oor for many possible outcomes – it might even pave the way to complete indeterminacy of decisions, as it could be misused to justify a personal decision.94 It is extremely easy to cherry-pick foreign law, in instances where there are a lot of different conventions and jurisdictions, to nd suitable foreign laws. The choice of the compared foreign law implies the outcome. When the legal practitioner limits his or her view to a few countries, he or she often ‘refuse[s] to take the bitter with the sweet’.95 By choosing the countries, one already puts the rabbit in the hat one later wants to pull it from. Two Supreme Court decisions involving similar facts but different outcomes provide examples of how some countries are chosen and others neglected: Bowers v. Hardwick96 and Lawrence v. Texas.97 In both cases, the Supreme Court had to decide whether state law penalizing consensual homosexual conduct between adult males was in accordance with the Constitution. In Bowers v. Hardwick the Supreme Court arrived at the conclusion that those laws were in fact constitutional. In a concurring opinion, Chief Justice Burger backed up his view that those state laws are constitutional by referring to ‘the history of Western civilizations’,98 which supported strict laws on homosexual behaviour. What he overlooked is that throughout Western Europe penal law was changed from the 1960s on so that consensual homosexual conduct was not criminal in any of the states of Western Europe. In fact, a judgment of the European Court of Human Rights99 on the matter from 1981, dealing with the conduct of an adult male in Northern Ireland, declares laws penalizing such behaviour as incompatible with the human rights of the petitioner. Twenty years later, in Lawrence v. Texas100, the Supreme Court arrived at the opposite decision and declared state laws on consensual homosexual behaviour unconstitutional. It referred explicitly to the decision of the European Court of Human Rights in justifying its decision. The 92

Compare: Charles de Montesquieu, The Spirit of Laws (First published 1748) (Edited by Anne Cohler, Basia Miller and Harold Stone, Cambridge University Press, 1989). 93 Zweigert and Kötz, Introduction to Comparative Law, supra note 1, at 62-73. 94 Alford, ‘Misusing International Sources’, supra note 23, at 68. 95 Michael Ramsey, ‘International Materials and Domestic Rights: Reections on Atkins and Lawrence’, 98 The American Journal of International Law (2004) 69-82 at 76. 96 Bowers v. Hardwick, 106 S. Ct. 2841 (US Supreme Court, 1986). 97 Lawrence v. Texas, supra note 5, at 2481 and 2483. 98 Bowers v. Hardwick, supra note 96, at 2847. 99 Dudgeon v. United Kingdom, ECHR Series A (1981), No. 45. 100 Lawrence v. Texas, supra note 5, at 2481 and 2483.

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Supreme Court did not, however, refer to around 40 countries in the world in which sodomy is still a crime; in some even a capital one. Some of the criticism can be counterbalanced by always choosing the same few countries, which share the same heritage. Unsurprisingly, the Supreme Court – if it looks abroad at all – tends to focus on ‘the leading members of the Western European Union’.101 Among those, especially important as a candidate for a comparison of law is the United Kingdom. Surprisingly, even Justice Scalia agrees that old English law should be taken into account, as some phrases in the Constitution were taken from English law.102 In Roper v. Simmons, the majority opinion referred to the United Kingdom, because … the United Kingdom’s experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment’s own origins.103

Two different arguments as to why one should have a look at the legal situation in the United Kingdom are condensed in this statement. On the one hand, there is the argument of shared history; the United States used to be a colony of England. On the other hand, the legal traditions of the United Kingdom are important because of the origin of the Eighth Amendment. Whereas the rst argument is cultural – we share the same culture, therefore ‘translations’104 from one country to another can be made without too much effort – the second argument is genealogical and looks at the origins of the law. Similar arguments have been made in other judgments.105 There are, however, some reservations to this closeness of legal cultures: the legal traditions were, in part, deliberately severed after seven years of war against the British from 1776 to 1783; in part they were changed through the inuence of new immigrant groups in the 19th century and, especially, in the second half of the 20th century. Even if one supposes a common starting-point and roots in the old English common law, the development of the law has been different in America and in the United Kingdom – not least in the last three decades since the United Kingdom joined the European Union. However, 101

Thompson v. Oklahoma, 108 S.Ct. 2687 (US Supreme Court, 1988) at 2688 and Roper v. Simmons, supra note 3, at 1199. 102 Statement of Scalia, ‘Conversation’, supra note 35, at 525. 103 Roper v. Simmons, supra note 3, at 1199. 104 For views on translations of legal concepts compare: Neil Walker, ‘Postnational constitutionalism and the problem of translation’, in Joseph Weiler and Marlene Wind (eds), European Constitutionalism beyond the State, 27-54 at 36. Besides that, language might also be an additional reason why the Supreme Court judges would only rarely look into any foreign state law other than that of the United Kingdom. Compare: Posner, ‘Could I interest you?’, supra note 31, at 43. 105 Compare for example: Lawrence v. Texas, supra note 5, at 2481. The judgement refers to British Parliamentary Reports.

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even taking these reservations into account, the UK certainly is still the closest to the US-American legal culture, as basic values of legal culture are shared.

Consequences of Comparative Law Arguments Practising Law Gets More Complicated An obvious criticism of using comparative law as a source is that if one allows – or even requires – foreign law to be referred to in American courts, the amount of research judges would have to do in order to resolve cases would increase enormously. It is argued that the law would not necessarily get any better, but merely more complicated.106 It is debatable whether the effort is worth the outcome. In his dissenting opinion in Knight v. Florida and Moore v. Nebraska, Justice Breyer quotes from, among others, Jamaican, Zimbabwean, and Indian law.107 He also quotes ndings which contradict his view – notably a decision by the Canadian Supreme Court and a decision of the United Nations Human Rights Committee. While it is fair to quote sources which indicate the opposite of the point he was going to make in his dissent, it is still open to question as to what Justice Breyer had in mind when he quoted several foreign law sources which partly contradict each other. Once again, one cannot escape a value judgement – in this particular case, that the decision of the Zimbabwean judge applies while the Canadian Supreme Court has decided on somehow different facts. Separation of Powers and Democracy One fundamental criticism of Roper v. Simmons concerns the role of the Supreme Court when overriding state legislation, thereby touching upon questions of separation of powers. The majority opinion points out that every country in the world has ratied the United Nations Convention on the Rights of the Child save for the United States and Somalia. It goes on to discuss the International Covenant on Civil and Political Rights, which states in Article 6 No. 5: Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age…

Justice Scalia remarks that the Senate has ratied the International Covenant on Civil and Political Rights only subject to a reservation that reads: 106

Posner, ‘Foreword: A Political Court’, supra note 23, at 84. Knight v. Florida and Moore v. Nebraska, 528 U.S. 990 (US Supreme Court, 1999), dissenting opinion by Justice Breyer.

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Finnish Yearbook of International Law (Vol. XVI, 2005) The United States reserves the right, subject to its Constitutional restraints to impose capital punishment, including such punishment for crime committed by persons below eighteen years of age.108

Thereby, the Senate had, according to Justice Scalia, made clear that the United States would not join the treaty system unless it could maintain the juvenile death penalty. This indicated that there was either no national consensus on the question or that the United States had reached a consensus contrary to what the Supreme Court announces. The Supreme Court contradicts, more or less directly, not only different state laws, but also acts of the Senate of the United States, which has together with the President the power to enter into treaties.109 International and foreign law are used here to circumvent the will of the governments of the states.110 It is not surprising that there has been an ongoing debate about the use of foreign law before the Supreme Court.111 Even if one personally likes the overall outcome of Roper v. Simmons, it is apparent that the Supreme Court might lose credibility in public opinion.

Conclusion Was this judgment only a ghostly light luring us onto a false path of believing a new era has come, or is it in fact ‘the birth of a new comparative jurisprudence’?112 And what would be the consequences of the Supreme Court quoting and applying more and more foreign law? This article has attempted to show that the use of comparative law is a tricky and often biased endeavour, opening new paths of reasoning for Supreme Court judges. The often-heard argument that the ndings of a comparative law analysis can only conrm or support a judgment, but not decide a case, cannot withstand critical scrutiny. If one divided sources into decisive ones and supportive ones, as the Supreme Court seems to have done,113 it is difcult to answer the probing question: what is the second category of sources needed for?114 If the rst set of legal arguments already answers the legal problem, why would one look for additional references? 108

Senate Committee on Foreign Relations, International Covenant on Civil and Political Rights, S. Exec. Rep. No 102-23 (1992). 109 See Article II, § 2 of the Constitution. 110 Alford, ‘Misusing International Sources’, supra note 23, at 59. 111 In 2004 Florida Representative Tom Feeney introduced a non-binding resolution instructing the judiciary to ignore foreign precedents when making their rulings. 112 Alford, ‘Our Constitution in International Equipoise’, supra note 7, at 3. 113 Roper v. Simmons, supra note 3, at 1198. 114 For a critical view on so-called soft law, see: Jan Klabbers, ‘The Redundancy of Soft Law’, 65 Nordic Journal of International Law (1996) 167-182.

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In Roper v. Simmons, as the Supreme Court has already arrived at its conclusion that the death penalty for juvenile criminals was a cruel and unusual punishment, why should it bother to look for further arguments in foreign jurisdictions? In this judgement, the reference to foreign law was essential and not just embellishment. The other two arguments of the Court – state law and psychological ndings – are disputable, as the dissenting opinions pointed out.115 Therefore, the judgment is primarily based on the use of foreign law as an argument. It is argued above that there is no convincing methodology behind the Supreme Court’s use of comparative law. By using – or not using – comparative law, the court has opened a new linguistic register to play with. Quoting foreign law in order to interpret domestic law is neither per se good nor bad – it all depends on the methodology, which should be revealed by the court and substantiated. It is to be hoped that the Supreme Court will come up with a convincing theory which explains when it is appropriate to look for foreign help, before the next occasion on which it turns to foreign law. If it does not do so, the Supreme Court might lose credibility, as the ickering use of foreign law seems arbitrary and instrumental. This loss of credibility due to the use of comparative law seems somewhat ironical, as comparative law is meant to be used in judgements in order to back results up and to add credibility. In particular, with George W. Bush’s nominee Justice Alito in ofce, it will be interesting to see whether the Supreme Court continues its comparative studies on issues like abortion or the exclusionary rule.

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Roper v. Simmons, supra note 3, at 1218.

War and Peace in Outer Space: A Review of the Legality of the Weaponization of Outer Space in the Light of the Prohibition on NonPeaceful Purposes1 Linda Johanna Friman*

War and Peace in Outer Space: Introduction At the heart of international space law lies a resolve to ensure that outer space, including the Moon and other celestial bodies, will not be inequitably exploited by individual states, but that the exploration and use of outer space shall be a perpetual and peaceful ‘province of all mankind’.2 This resolve is afrmed by the basic legal principles set forth in the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space,3 to wit: The exploration and use of outer space shall be carried on for the benet and in the interest of all mankind; * LL.M, doctorand; Faculty of Law, University of Turku, 20014 Turku, Finland; johanna.friman@utu.. I wish to sincerely thank Professor Lauri Hannikainen for his invaluable support and encouragement. I further want to stress that all factual errors and analytical failings are my own. 1 For the purpose of the present study, the term ‘weaponization’ will denote the temporary or permanent deployment of weaponry in outer space. The term ‘outer space based weapon’ will refer to an orbital or a stationary articial mechanism designed to negate terrestrial or extraterrestrial targets. The term ‘deployment’ should be construed as ‘putting into position ready for use’, therefore referring to the stationing, installation or placement of weapons in outer space, and not to the actual use of such weapons once deployed. The term ‘outer space’ will comprise two distinct constituents: the celestial bodies, and the space between the celestial bodies or outer void space. 2 See, for instance: the work of the Committee on the Peaceful Uses of Outer Space (UNCOPUOS), as well as the international legal instruments relating to the uses of outer space and the relevant legal doctrine on this subject. 3 GA Res. 1962 (XVIII), 13 December 1963.

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Finnish Yearbook of International Law (Vol. XVI, 2005) Outer space and celestial bodies are free for exploration and use by all states on a basis of equality and in accordance with international law; In the exploration and use of outer space, states shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space with due regard for the corresponding interests of other states; Outer space and the celestial bodies are not subject to national appropriation by any means.

These basic legal principles were subsequently reafrmed as legally binding obligations in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (hereinafter the ‘Outer Space Treaty)4 which constitutes the ‘Magna Charta’ of international space law. In order to safeguard the perpetual and peaceful ‘province of all mankind’, the Outer Space Treaty imposes two core prohibitions, namely the prohibition on national appropriation of outer space, and the prohibition on non-peaceful purposes in outer space. Regarding the prohibition on non-peaceful purposes, which is the object of the present study, the applicable provision is Article IV of the Outer Space Treaty, which reads as follows: States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.5 The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientic research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.

4

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, London, Moscow and Washington, D.C., 27 January 1967, in force 10 October 1967, 610 United Nations Treaty Series 205. Adopted by GA Res. 2222 (XXI), 19 December 1966. 5 (Emphasis added).

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However, in the nal draft treaty annexed to the United Nations General Assembly Resolution 2222 (XXI) a very signicant word is absent from the last part of Article IV, rst paragraph: States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station weapons in outer space in any other manner.6

The absent word ‘such’ in the last part of Article IV, rst paragraph is far from irrelevant since this is the very word that anchors the last part of the sentence to the rest of the paragraph. Without the word ‘such’, the last part of Article IV, rst paragraph could be construed so as to prohibit the stationing of all weapons in outer space, and not only weapons of mass destruction (hereinafter WMD). At the very least, this choice of words may be regarded as an indicator of the intention of the drafters concerning the legality of the weaponization of outer space. Apart from in Article IV, the term ‘peaceful purposes’ features twice in the preamble of the Outer Space Treaty. In the second paragraph, the states parties to the treaty recognise ‘the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes’; and in the fourth paragraph, the states parties to the treaty desire ‘to contribute to broad international cooperation in the scientic as well as the legal aspects of the exploration and use of outer space for peaceful purposes’. The objective of the present study is to consider whether the weaponization of outer space would contravene the prohibition on non-peaceful purposes in the Outer Space Treaty, and thus constitute an unlawful use of outer space. An analysis of the content and scope of the prohibition will accordingly form the nucleus of the study. Regrettably however, the Outer Space Treaty neglects to dene any of the terms it employs, most notably in this respect the decisive term ‘peaceful purposes’. Considering that the Outer Space Treaty itself is incapable of providing the denitions that are indispensable for its application, rules of interpretation must therefore be sought outside of the Outer Space Treaty. The logical choice of outside source is the Vienna Convention on the Law of Treaties (hereinafter the ‘Vienna Convention’).7 However, since the Outer Space Treaty was concluded prior to the Vienna Convention, it follows that none of the provisions of the Vienna Convention

6

GA Res. 2222 (XXI), 19 December 1966. (Emphasis added). Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, in force 27 January 1980, 1155 United Nations Treaty Series 331. 7

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can be applied as such to the Outer Space Treaty.8 Nonetheless, the Outer Space Treaty is subject to the customary international law on treaties, which constitutes an independent, binding source of law even if its rules are identical with the provisions of the Vienna Convention.9 As the Vienna Convention generally is held to codify pre-existing customary international law, the provisions of the Convention may serve as evidence of the content of the corresponding customary norms.10 Hence, the provisions regarding treaty interpretation in Section 3 of the Vienna Convention would apply to the Outer Space Treaty inasmuch as they embody rules of international law antedating the Vienna Convention. When contemplating the legal binding force of preambles of treaties the general rule of interpretation in Article 31 of the Vienna Convention should be taken into consideration. Article 31 of the Vienna Convention stipulates that ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Article 31 further establishes the preamble of a treaty as a primary tool for uncovering the object and purpose of a treaty. Together with the title and the entire body of the text of the treaty, the preamble provides the context in which the terms of the treaty shall be interpreted. The stipulation in Article 31 that a treaty shall be interpreted in good faith entails that no term may mala des be construed so as to denote a meaning that is linguistically accurate but inconsistent with the object and purpose of the treaty. The composition of the present study will follow the argumentative pattern advanced by Martti Koskenniemi in his outstanding work: From Apology to Utopia: The

8

Article 4 of the Vienna Convention stipulates the non-retroactivity of the Convention by stating that: ‘[w]ithout prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.’ 9 The International Court of Justice has declared that even if a treaty norm and a customary norm were to have exactly the same content, the treaty norm does not necessarily deprive the customary norm of its separate applicability. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986 (Merits), ICJ Reports (1986) 14, at 94. 10 See, for instance: Case Concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Second Phase, Judgment of 5 February 1970, ICJ Reports (1970) 3, (Separate Opinion of Judge Ammoun) 286, at 305; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 278 (1970), Advisory Opinion of 21 June 1971, ICJ Reports (1971) 16, at 47; Appeal Relating to the Jurisdiction of the Icao Council (India v. Pakistan), Judgment of 18 August 1972, ICJ Reports (1972) 46, (Separate Opinion of Judge Dillard) 92, at 101; and Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Reports (1980) 73, (Separate Opinion of Judge Sette-Camara) 178, at 184.

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Structure of International Legal Argument.11 In this work, Koskenniemi reasons that there are two ways of arguing about order and obligation in international affairs: One argument traces them down to justice, common interests, progress, nature of the world community or other similar ideas to which it is common that they are anterior, or superior, to State behaviour, will or interest. They are taken as a given normative code which precedes the State and effectively dictates how a State is allowed to behave, what it may will and what its legitimate interests can be. Another argument bases order and obligation on State behaviour, will or interest. It takes as given the existence of States and attempts to construct a normative order on the basis of the “factual” State behaviour, will and interest.12

Koskenniemi calls these the ‘“descending” and “ascending” patterns of justication.’ According to the descending pattern of justication as reasoned by Koskenniemi, normativity demands that the law be opposable to state policy. The descending argument is premised on the theory that the normative code overrides individual state behaviour, will or interest. For if the law cannot constrain even those who do not wish to be constrained, the law would lack binding force. Normativity is thus a sine qua non for the objectivity of the law. But if the law is divorced from state will, it must be assumed to exist as a natural morality or, alternatively, that not every state’s acceptance is needed at any given time. The former conicts with the principle of subjective value, on which the Rule of Law is founded. The latter creates an arbitrary distinction between states, which violates sovereign equality. Ultimately, the descending argument falls into subjectivism, as it cannot demonstrate the content of the law in a reliable manner. For if the normative code is divorced from state practice, there remains no objective method of verifying its norms and the law ends up in an indemonstrable utopia.13 According to the ascending pattern of justication as reasoned by Koskenniemi, concreteness demands that the content of the law be veried by factual state practice. The ascending argument is premised on the theory that state behaviour, will and interest are determining of the law. For if the normative code is divorced from state practice, there remains no objective method of verifying its norms. Only an ascending argument can defend sovereign equality and the Rule of Law. Concreteness is thus a sine qua non for the objectivity of the law. But if subjective acceptance is mandatory, then the law cannot be applied on a non-accepting state and normativity is lost. Ultimately, the ascending argument falls into subjectivism, as it cannot constrain at all, 11

Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Finnish Lawyers’ Publishing Company: Helsinki, 1989). 12 Ibid., at 40-41. 13 Ibid., at 40-42 and 44-45.

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and thus deprives the law of binding force. For if the law is whatever the individual state chooses to regard as binding norms at the moment, it ends up in a descriptive apology for state practice.14 Following Koskenniemi’s descending and ascending patterns of justication, the present study will analyse the content of the prohibition on non-peaceful purposes in outer space from three perspectives: the utopian approach; the apologist approach; and the reconciling approach. The scope of the prohibition on non-peaceful purposes in outer space will be analysed from two perspectives: the narrow approach and the wide approach.

The Weaponization of Outer Space and the Prohibition on Non-Peaceful Purposes The Point of Departure The point of departure for the present study is the fundamental contention about whether outer space is neutralized, demilitarized or deweaponized under the Outer Space Treaty. While these concepts are often used interchangeably, there are variances that merit a demarcation. ‘Neutralization’ may be dened as the process whereby a space is excluded from the theatre of war and armed conict.15 ‘Demilitarization’ may be dened as the process whereby all forms of military methods, forces and resources are barred from a space.16 Finally, ‘deweaponization’ may be dened as the process whereby the deployment of all weapons is banned from a space.17 14

Idem. According to the Oxford English Dictionary, <www.oed.com> (visited 7 June 2006), if a place is ‘neutralized’, it is exempted or excluded from the sphere of warlike operations. 16 The Oxford English Dictionary, <www.oed.com> (visited 7 June 2006) denes the term ‘militarization’ as the action of making military in character or style, especially by the provision or expansion of military forces and other resources; and the term ‘militarize’ as making military in character or style, converting to military methods, or equipping with military resources or training. For the purpose of the present study, the term ‘demilitarization’ will be dened as being the opposite to the term ‘militarization’. 17 For a denition of the term ‘weaponization’, see supra note 1. For the purpose of the present study, the term ‘deweaponization’ will be dened as being the opposite to the term ‘weaponization’. This denition is evidently supported by the Oxford English Dictionary, <www.oed.com> (visited 7 June 2006), which denes the term ‘weaponization’ as the process of equipping with weapons of war, and the tern ‘weaponize’ as installing weapons in a place. Regarding the neutralization and demilitarization of outer space, see also: Maurice Andem, International Legal Problems in the Peaceful Exploration and Use of Outer Space (University of Lapland, Faculty of Law: Rovaniemi, 1992) at 185-234. 15

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It appears incontestable that all celestial bodies bar the Earth are totally neutralized under Article IV, second paragraph. The provision is explicit in its articulation and prohibits any use or preparation whose immediate or ultimate aim could serve warfare. The celestial bodies are thus excluded by treaty from the theatre of war and armed conict. Regarding outer void space, however, the stipulation is poorly articulated, to say the least. While Article IV, rst paragraph does explicitly prohibit the deployment of WMD in orbit around the Earth or in outer space in any other manner, it is arguable whether it even succeeds in making this realm entirely WMD-free, let alone excluding it from the theatre of war and armed conict.18 Hence, even to claim that outer void space is partially neutralized may be arguing too much. To regard outer void space as partially demilitarized begs the same question. Outer void space is already militarized by both military and non-military space assets. Demilitarizing outer void space would necessitate a ban on, inter alia, reconnaissance, surveillance, and communication assets since these may be of ‘dual use’ that is exploited for both civil and military purposes. Seeing as it is virtually impossible to discriminate between the peaceful and non-peaceful military exploitation of the advantages gained by such dual use space assets, the boundary between partial and total militarization of outer void space is obscure at best. Even the claim that the celestial bodies are non-militarized may be untenable, given that Article IV, second paragraph does not prohibit the use of military personnel for scientic research or for any other peaceful purposes. Since the use of military personnel employs the military, it may be considered a form of indirect military activity, wherefore the claim that all celestial bodies bar the Earth are totally demilitarized is debatable. Alternatively, the claim that all celestial bodies bar the Earth are partially demilitarized is defensible since Article IV, second paragraph of the Outer Space Treaty sanctions the use of military personnel only for scientic research or for any other peaceful purposes. Consequently, whereas there can be no doubt that the celestial bodies are at the very least partially demilitarized, any effort to turn the clock back and designate outer void space a totally demilitarized ‘space sanctuary’ would be a non-starter. Then again, weaponization is as a subcategory of militarization narrower in concept but incontestably a form of military activity. Since Article IV, rst paragraph explicitly prohibits the deployment of WMD in outer void space or on celestial bodies, it may accordingly be argued that outer space, including all celestial bodies bar the Earth, is partially demilitarized because it is partially deweaponized. However, since total deweaponization precludes the deployment of all weapons and not only WMD, 18

For instance, it is silent on the transit through outer space of missiles with nuclear warheads. Bin Cheng, Studies in International Space Law (Clarendon Press: Oxford, 1997) at 246.

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it remains open to question whether outer space is totally deweaponized under the Outer Space Treaty.

The Content of the Prohibition Even as the boundary between lawful and unlawful uses of outer space is premised on the fundamental term ‘peaceful purposes’, it remains without an authoritative denition in the Outer Space Treaty. The ambiguous adjective ‘peaceful’ has thus become a pivotal apple of discord in the outer space weaponization debate. Two denitions of the term ‘peaceful’ in relation to activities in outer space are generally advanced, namely ‘nonmilitary’ and ‘non-aggressive’.19 Prior to the Outer Space Treaty, the widely accepted denition of the term ‘peaceful’ appears to have been ‘non-military’.20 Yet, from the very beginning of the space era the objectives of national space agendas have been primarily military, as opposed to purely commercial or scientic, notwithstanding the idealistic sentiment among many people and governments that outer space should be reserved only for genuinely peaceful purposes and the common benet of mankind.21 The United States soon adopted the ofcial position that the term ‘peaceful’ means ‘non-aggressive’ and not ‘non-military’.22 According to this argument, all military uses of outer space are permitted and lawful as long as they remain non-aggressive. The Soviet Union publicly refused to accept this new denition and adamantly argued that all military activities in outer space were non-peaceful by nature and therefore presumably unlawful.23 Cheng argues that among various reasons why the argument that the term ‘peaceful’ in connection with outer space should be dened as ‘non-aggressive’ rather than ‘non-military’ is deeply awed, the simplest is that any such interpretation would render the rst sentence of Article IV, second paragraph of the Outer Space Treaty

19

See, for instance: J.E.S. Fawcett, International Law and the Uses of Outer Space (Manchester University Press, 1968) at 29; and Andem, Legal Problems, supra note 17, at 209. 20 See, for instance: The Antarctic Treaty, Washington, 1 December 1959, in force 23 June 1961, 402 United Nations Treaty Series 71, Article I. 21 Fawcett, Uses of Outer Space, supra note 19, at 29; and Cheng, Studies in International Space Law, supra note 18, at 514. 22 Cheng, Studies in International Space Law, supra note 18, at 515; and Commission to Assess United States National Security Space Management and Organization, ‘Report of the Commission to Assess United States National Security Space Management and Organization’, (11 January 2001) at 36, <www.defenselink. mil/pubs/space20010111.pdf> (visited 20 June 2006). 23 Hans-Joachim Heintze, ‘Peaceful Uses of Outer Space and International Law’, 17 INESAP Information Bulletin Issue (1999), 54-56 at 54, <www.inesap.org/pdf/inesap17.pdf> (visited 13 June 2006).

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completely meaningless.24 As Article III25 of the Outer Space Treaty reafrms the universal ascendancy of the Charter of the United Nations (hereinafter the ‘UN Charter’),26 set forth in its Article 103,27 aggressive acts on and beyond Earth are inconsistent with the international law on the use of force and the UN Charter, particularly its Article 2(4).28 Therefore, aggressive acts would be prohibited in outer space and it would be utterly redundant in Article IV, second paragraph of the Outer Space Treaty to specically provide that the Moon and other celestial bodies shall be used exclusively for ‘non-aggressive purposes’. According to Cheng, the inescapable conclusion to be drawn is that, if the term ‘peaceful’ in Article IV, second paragraph is to have any meaning at all, it cannot be dened as ‘non-aggressive’.29 The denition of the term ‘peaceful purposes’ has thus reached an impasse. Granted that the term ‘peaceful’ in connection with activities of states in outer space cannot be dened as ‘non-aggressive’, there seems to be no viable interpretation to employ. To interpret ‘peaceful’ as ‘non-military’ would be more untenable still as this would prohibit all activities with outright military or dual purposes in outer space. Seeing as military and dual use assets (for example reconnaissance, surveillance and communication satellites) have been operational since the dawn of the space era, and have encountered little or no defensible opposition as to their lawfulness since then, seeking to declare outer space non-militarized under the Outer Space Treaty today would be ogging a dead horse. Therefore, the term ‘peaceful’ in connection with outer space must either be redened on entirely new grounds, or a justiable rationale must be provided for dening it as either ‘non-military’ or ‘non-aggressive’ notwithstanding the shortcomings of both denitions. 24

Cheng, Studies in International Space Law, supra note 18, at 521. Article III of the Outer Space Treaty stipulates that ‘States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding.’ 26 Charter of the United Nations, San Fransisco, 26 June 1945, in force 24 October 1945, 1 United Nations Treaty Series xvi. 27 Article 103 of the UN Charter ordains that ‘[i]n the event of a conict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ 28 Article 2(4) of the UN Charter stipulates that ‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ 29 Cheng, Studies in International Space Law, supra note 18, at 521. This position is embraced by other learned writers, see, for instance: Andem, Legal Problems, supra note 17 at 224; Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (A.W. Sijthoff International Publishing Company, N.V.: Leiden, 1972) at 105-107; and Fariborz Nozari, The Law of Outer Space (P A Norstedt & Söners förlag: Stockholm, 1973) at 41. 25

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The content of the term ‘peaceful’ evidently possesses a very wide compass of interpretation, wherefore the choice between ‘non-military’ and ‘non-aggressive’ as a denition resembles a choice between Scylla and Charybdis. Neither denition is satisfactory, nor can they be conclusively justied on legal grounds provided by the Outer Space Treaty. Both denitions may harbour serious consequences for international space law; ‘non-military’ because it restricts too much and therefore is utterly utopian, and ‘non-aggressive’ because it restricts too little and therefore is blatantly apologist. In the light of the perils and pitfalls inherent in both denitions, it may be judicious to simply redene the term ‘peaceful’ in connection with activities of states in outer space. The determination of the content of the prohibition on non-peaceful purposes in outer space may accordingly be sought through three approaches, to wit: the utopian approach; the apologist approach; and the reconciling approach proposed by the author of the present study. The utopian approach is a descending argument seeking to defend the denition ‘non-military’ of the term ‘peaceful’. The apologist approach is an ascending argument seeking to defend the denition ‘non-aggressive’ of the term ‘peaceful’. The reconciling approach seeks to redene the term ‘peaceful’ so as to better comply with the object and purpose of the Outer Space Treaty.

The Utopian Approach The utopian approach defends the denition ‘non-military’ of the term ‘peaceful’ because if the prohibition on non-peaceful purposes in outer space was intended to rule out aggression only, mere reference to international law and the UN Charter would have sufced. Since the prohibition on non-peaceful purposes was expressly written into the Outer Space Treaty, it can hardly be regarded as consonant with the intention of the drafters that this provision be meaningless and devoid of legal import. However, in practice virtually all outer space based assets can be exploited by the military, but not necessarily for non-peaceful purposes. For instance, dual use assets such as surveillance and communication satellites can be exploited by the military in the interest of maintaining international peace and security. Dening the term ‘peaceful’ as ’non-military’ would render any purpose that coincides, or could presumably coincide, with military objectives in outer space non-peaceful and thereby unlawful under the Outer Space Treaty. Such an interpretation would hardly be consonant with the international law on the use of force or established state practice in outer space, as it would cloud the distinction between peaceful and non-peaceful military purposes. The denition ‘non-military’ of the term ‘peaceful’ is therefore utterly utopian, for it imposes a legally binding prohibition on non-peaceful purposes in outer space that pays no heed to factual state practice.

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Nevertheless, the denition ‘non-military’ of the term ‘peaceful’ should not be taken too lightly despite its vulnerability to the charge of utopianism. It could be argued that the phraseology of Article IV, second paragraph of the Outer Space Treaty is directly traceable to Article I of the Antarctic Treaty, which reads as follows: 1. Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortications, the carrying out of military manoeuvres, as well as the testing of any type of weapon. 2. The present Treaty shall not prevent the use of military personnel or equipment for scientic research or for any other peaceful purpose.30

From this provision, at least Cheng and Lachs derive an interpretation which they consider fully applicable to Article IV, second paragraph of the Outer Space Treaty, namely that ‘peaceful’ means ‘non-military’.31 This conclusion is evidently derived from Article I(1) of the Antarctic Treaty, which prohibits ‘any measure of a military nature’. This prohibition is explicit in its articulation and it may therefore be taken as read that in the Antarctic Treaty, the term ‘peaceful’ must be dened as ‘nonmilitary’. However, notwithstanding the arresting parallels between Article I of the Antarctic Treaty and Article IV, second paragraph of the Outer Space Treaty, such an explicit prohibition does not feature in the latter. This is a noteworthy omission, which cannot simply be dismissed as immaterial. If indeed the drafters used Article I of the Antarctic Treaty as a blueprint for Article IV, second paragraph of the Outer Space Treaty, it would surely have been judicious to include this phrase, since this would effectively have forestalled the ensuing ambiguity regarding the denition of the term ‘peaceful purposes’. The absence of such an unequivocal prohibition in Article IV, second paragraph of the Outer Space Treaty indicates either that the drafters of the Outer Space Treaty were negligent, or that the omission was deliberate. Fawcett perceptively points out that in a landmark international legal instrument such as the Outer Space Treaty, some care and precision of language must be expected, wherefore it would seem that a more restricted demilitarization of the Moon and other celestial bodies was intended than of Antarctica.32 30

On the Antarctic Treaty, see supra note 20. Cheng, Studies in International Space Law, supra note 18, at 247 and 519; and Lachs, The Law of Outer Space, supra note 29, at 106-109. 32 Fawcett, Uses of Outer Space, supra note 19, at 34-35. 31

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For it must be borne in mind that, deliberate or not, the omission cannot be remedied in hindsight by taking as incontestable fact a denition that in reality is no more than an interpretation derived from analogy. While resorting to analogy may lend support to a given interpretation, it cannot legally conrm this interpretation as a conclusive denition. Consequently, just because the term ‘peaceful’ was at one time, and in another set of circumstances, interpreted as ‘non-military’ does not mean that it must always be so. As early as eight years before the conclusion of the Outer Space Treaty when man was taking his rst tentative steps towards outer space exploration, at least two learned writers realised that the military implications of outer space exploitation can be ignored only out of ‘naiveté, blindness, or political convenience’.33 Jessup and Taubenfeld further stressed that in outer space, ‘the most peaceful uses may be suffused with military potentials’.34 Then, even if the prevailing denition of the term ‘peaceful’ was ‘non-military’ prior to the conclusion of the Outer Space Treaty, this denition may since then have been challenged by state practice, at least regarding outer space. The utopian approach possesses yet another pitfall. For under the utopian approach, Article IV, second paragraph of the Outer Space Treaty would explicitly stipulate that the use of military personnel for scientic research or for any other ‘nonmilitary purposes’ shall not be prohibited, and neither shall the use of any equipment necessary for ‘non-military’ exploration of the Moon and other celestial bodies. Then, for the denition ‘non-military’ of the term ‘peaceful’ in connection with purposes in outer space to be normatively tenable, military personnel and equipment must be capable of ridding themselves of their military stigma. While both Lachs and Cheng maintain that this provision in no way invalidates the denition ‘non-military’ of the term ‘peaceful’,35 it does bring the utopianism of the denition even more to light. Cheng argues that if the military character of an activity or a piece of equipment essentially is of a nominal and not a functional status, it would no longer carry a military stigma, and therefore be perfectly lawful under the Outer Space Treaty, provided there is no abuse.36 This reasoning begs the question of how in practice to objectively distinguish between a ‘nominal’ and a ‘functional’ status. In practice, it would be all but impossible to objectively ascertain whether the use of military personnel or equipment is for military or non-military purposes, given that these may coincide. Since virtually all 33

Philip Jessup and Howard Taubenfeld, Controls for Outer Space and the Antarctic Analogy (Oxford University Press, 1959) at 225. 34 Ibid., at 223. 35 Lachs, The Law of Outer Space, supra note 29, at 109; and Cheng, Studies in International Space Law, supra note 18, at 519. 36 Cheng, Studies in International Space Law, supra note 18, at 519.

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outer space based assets can be directly or indirectly exploited by the military, any purpose in outer space may thus coincide with a military purpose. Dening the term ‘peaceful’ as ‘non-military’ would run counter to consistent state practice in outer space, and is therefore vulnerable to the charge of utopianism. What is more, trying to contest the charge of utopianism by sanctioning even indirect military purposes under a prohibition on non-military purposes would be to go out of the frying pan into the re. One of the main arguments against dening ‘peaceful’ as ‘non-aggressive’ is that such an interpretation would render the rst sentence of Article IV, second paragraph of the Outer Space Treaty superuous, since aggressive acts would be contrary to international law and are already prohibited by the UN Charter. The denition of the term ‘peaceful’ as ‘non-aggressive’, coined by the United States, is undeniably far from uncontroversial and, as Cheng puts it, ‘potentially noxious’,37 but to claim that it is invalid simply because it is redundant may be more noxious still. Reafrmation is hardly an uncommon feature in international legal instruments; countless treaties, conventions and resolutions reafrm the same commitments and legal principles without being invalid as a result. Consequently, redundancy cannot be the sole ground for invalidity. In order to escape the charge of utopianism, the adherents of the utopian approach must maintain either that some military purposes are in fact only nominally military but functionally non-military, or that the term ‘peaceful’ must be interpreted as ‘non-military’ because dening it as ‘non-aggressive’ would render the rst sentence of Article IV, second paragraph of the Outer Space Treaty redundant and cannot therefore be valid. Either way, to prohibit military purposes de jure yet sanction military purposes de facto is not only a contradiction in terms; it highlights rather than escapes the utopianism of the denition. A denition of the term ‘peaceful’ as ‘non-military’ would however be legally conclusive, because it would render all military purposes in outer space non-peaceful and thereby unlawful under the Outer Space Treaty. Given that advanced weaponry is an indivisible part of any military apparatus, it follows that the deployment of outer space based weaponry indisputably would be a military purpose. Hence, were the term ‘peaceful’ to be dened as ‘non-military’, the weaponization of outer space would fall under the prohibition on non-peaceful purposes in outer space. Unfortunately, so would any purpose in outer space that coincides, or could presumably coincide, with military objectives. Ultimately, a prohibition on non-military purposes in outer space would be so wide that it would de facto cover any purpose in outer space.

37

Ibid., at 520-521.

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The Apologist Approach The apologist approach defends the denition ‘non-aggressive’ of the term ‘peaceful’ because interpreting the prohibition on non-peaceful purposes in outer space so as to proscribe all military purposes would pay no heed to factual state practice and further cloud the crucial distinction between peaceful and non-peaceful military purposes. However, in reality any purpose can be defended as being non-aggressive if left to the subjective discretion of the claimant-state. The denition ‘non-aggressive’ of the term ‘peaceful’ is therefore blatantly apologist, because it would in effect give a carte blanche to any military purpose in outer space, and would thus impose a legally binding prohibition on non-peaceful purposes in outer space that is determined by subjective state policy. Notwithstanding its vulnerability to the charge of apologism, the denition ‘non-aggressive’ of the term ‘peaceful’ cannot, however, simply be dismissed as invalid without due consideration. For it must be borne in mind that the drafters of the Outer Space Treaty either intentionally or unintentionally left room for interpretation of the term ‘peaceful purposes’. And just as with the denition ‘non-military’, a justiable rationale for dening the term ‘peaceful’ as ‘non-aggressive’ may be provided by resort to analogy. The Treaty between Norway, the United States of America, Denmark, France, Italy, Japan, the Netherlands, the Great Britain and Ireland and the British Dominions beyond the Seas and Sweden relating to Spitsbergen (hereinafter the ‘Svalbard Treaty)38 was concluded in 1920 on the legal status, sovereignty and regime of Svalbard (Spitsbergen).39 While the Svalbard Treaty is less analogous to the Outer Space Treaty than the Antarctic Treaty, it does nevertheless illustrate that the term ‘peaceful’ may indeed be interpreted as ‘non-aggressive’. The pertinent provision of the Svalbard Treaty is Article 9, which reads as follows: ‘Subject to the rights and duties resulting from the admission of Norway to the League of Nations, Norway undertakes not to create nor to allow the establishment of any naval base in the territory specied in Article 1 and not to construct any fortication in the said territories, which may never be used for warlike purposes.’ 40 38

The Treaty was concluded in Paris, 9 February 1920 and entered in force 14 August 1925, 2 League of Nations Treaty Series 8. 39 Svalbard is the name of an Arctic archipelago situated between Norway and the North Pole. Norway was granted sovereignty over Svalbard by the Svalbard Treaty. However, Norwegian sovereignty over Svalbard is subject to severe restrictions, one of the most important being the requirement of peaceful utilization of the archipelago. Geir Ulfstein, The Svalbard Treaty: From Terra Nullius to Norwegian Sovereignty (Scandinavian University Press: Oslo – Copenhagen – Stockholm – Boston, 1995) at 17. 40 Med forbehold av de rettigheter og plikter for Norge som følger av dets tiltredelse av Folkenes Forbund

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The noteworthy term employed in Article 9 of the Svalbard Treaty is ‘krigsøiemed’ or ‘warlike purposes’, which is an antonym to the term ‘peaceful purposes’. Ulfstein begins the arduous task of interpretation with the premise that the prohibition on ‘warlike purposes’ presupposes that, notwithstanding the right of self-defence in the case of attacks on Svalbard, war actions against other parts of Norway cannot be met by war actions from Svalbard. He then proceeds to dene the term ‘warlike purposes’ and comes to the conclusion that the prohibition on ‘warlike purposes’ does not preclude military activities short of war.41 While Ulfstein’s interpretation begs the question of why the drafters of the Svalbard Treaty opted for the simile ‘warlike’ if their intention was to prohibit nothing save outright war, this reasoning would ostensibly lend support to the denition ‘nonaggressive’ of the term ‘peaceful’. For even as the prohibition on ‘warlike purposes’ in Ulfstein’s view only precludes outright war, war actions in self-defence are not prohibited. Offensive war would thus be prohibited, but not defensive war. It follows that if the term ‘warlike purposes’ only covers war of aggression, the term ‘warlike’ would be synonymous with the term ‘aggressive’, wherefore the term ‘peaceful’ as its antonym must be dened as ‘non-aggressive’. Be that as it may, not entirely without merit Cheng points out that the adherents of the apologist approach often point to the impossibility of separating ‘military’ from ‘non-military’ activities, apparently labouring under the delusion that there exists some clear-cut, universally accepted and immediately recognisable distinction between ‘aggressive’ and ‘non-aggressive’ military activities.42 While there may very well be some truth in this, cogent efforts have still been made to demarcate acts of aggression in interstate relations,43 whereas little or no effort has been devoted to determine a practical distinction between ‘military’ and ‘non-military’ activities. The reason for this lack of effort is readily explicable. Particularly in outer space, ‘military’ and ‘non-military’ are highly uid concepts and nigh on impossible to separate without resorting to a ban on all articial outer space assets. Such a ban would, of forplikter Norge sig til ikke å oprette eller tillate oprettet nogen åtebasis i de egner som er nevnt i artikkel 1 eller anlegge nogen befestning i de nevnte egner som aldri må nyttes i krigsøiemed. Translation provided by Ulfstein, ibid., Appendix E. See also: <www.lovdata.no/cgi-bin/udofes?doc=tra-1920-02-09-001. txt&> (visited 14 June 2006). 41 Ulfstein, The Svalbard Treaty, supra note 39, at 367 and 373-378. 42 Cheng, Studies in International Space Law, supra note 18, at 515-516. 43 See, inter alia: Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970; the Denition of Aggression, GA Res. 3314 (XXIX), 14 December 1974; and the Declaration on the Enhancement of the Effectiveness of the Principles of Refraining from the Threat or Use of Force in International Relations, GA Res. 42/22, 18 November 1987.

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course, be tantamount to designating outer space a res divinius, out of bounds to man. Those who defend the denition ‘non-military’ of the term ‘peaceful’ are in fact inadvertently providing cast-iron evidence that the many international legal and quasi-legal instruments stipulating that the exploration and use of outer space shall be for peaceful purposes are, if not formally null and void, then certainly breached on a continual basis, which attests to the utopianism of the denition. All the same, the inescapable Achilles’ heel of the apologist approach is that it merely reafrms one of the cornerstone principles of the UN Charter, namely that states shall refrain from threat or use of aggressive military force in their international relations. While neither reafrmation nor redundancy can be the sole grounds for invalidating this denition, the apologist approach would lessen the legal import of the Outer Space Treaty. Why prohibit that which is already effectively prohibited? The apologist approach possesses yet another pitfall. Notwithstanding the laudable multilateral efforts to separate offensive or ‘aggressive’ military purposes from defensive or ‘non-aggressive’ military purposes, the dividing line between the two is fast becoming clouded by state practice. A more compelling reason to consider the denition of ‘peaceful’ as ‘non-aggressive’ unsatisfactory may therefore be the lack of objective criteria to distinguish between offensive and defensive military purposes. A key criterion for any act to qualify as ‘aggressive’ is the use of weapons, or put another way, of armed military force.44 Accordingly, merely deploying weapons in outer space would apparently fail to meet the criteria of aggression, whereas the use of such weapons would conceivably constitute an act of aggression and would therefore presumably be unlawful if targeted at the territory of another state, save in the case of lawful self-defence. By this reasoning, as long as the outer space based weapons remain passive ad innitum,45 the weaponization of outer space would ostensibly seem to 44

The International Court of Justice has afrmed that the Denition of Aggression reects customary international law. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nigaragua v. United States of America), Judgment of 27 June 1986 (Merits), ICJ Reports (1986) 14, at 103 and (Dissenting Opinion of Judge Schwebel) 259, at 338 and 345. Article 1 of the Denition of Aggression (supra note 43) denes ‘aggression’ as the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the UN Charter. Article 3 of the Denition of Aggression enumerates acts that regardless of a declaration of war shall qualify as an act of aggression, including, inter alia, bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state. (Emphasis added.) 45 Well, ‘ad innitum’ may theoretically be arguing too much. Consistent with this line of reasoning, lawful targets of outer space based weapons would include: celestial objects (for instance, meteors); objects on Earth beyond the territory of any state (for instance, the waters of the high seas); or, not to discount any eventuality, however far-fetched: extraterrestrial, articial objects (for instance, alien star cruisers). And even then, said targets may be unlawful under current or future international legal instruments, international customary law, or general principles of international law. So in practice, ‘ad innitum’ may

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withstand the prohibition on non-peaceful purposes in outer space by not constituting an act of aggression. However, it must be borne in mind that the Outer Space Treaty does not speak of peaceful ‘acts’, but of peaceful ‘purposes’. ‘Purpose’ can be dened as an intention or aim. Hence, under the apologist approach, for the weaponization of outer space to withstand the prohibition on non-peaceful purposes, the intention or aim behind the deployment of outer space based weaponry must be non-aggressive. Now, advanced weaponry is by its inherent nature a tool of war. The ultimate purpose of force of arms, even when proclaimed to be solely for deterrence, defence, or the maintenance of international peace and security, is for warfare. As regards the weaponization of outer space, this is afrmed for instance by the Air Force Space Command, ‘Strategic Master Plan for FY02 and Beyond’ (hereinafter ‘US Strategic Master Plan’), which spells out in no uncertain terms that the vision end state calls for measures to gain and maintain military supremacy over outer space by means of a ‘full spectrum of offensive space capabilities’.46 It is frequently put forward, generally by the adherents of the apologist approach in the pro-weaponization camp, that offensive weapons are ‘aggressive’ and thus nonpeaceful, whereas defensive weapons are ‘non-aggressive’ and therefore peaceful. Fair enough, by stretching the denition of the term ‘non-aggressive’ to the limit, defensive weapons could perhaps fall within its scope. This mindset is, however, a ight of fancy. A ‘defensive’ weapon would necessitate that its offensive capability be disabled, which, needless to say, would render the weapon inoperative. For even with the advances made in the research and development of articial intelligence, not even a fully automatic weapon system can technologically distinguish between offence and defence. This distinction cannot be drawn by the articial intelligence of machinery simply because, technologically, there is no distinction between offence and defence but merely between ‘active’ and ‘passive’. The dividing line between offence and defence can only be drawn by the state in possession of the weapon because it is created and governed by subjective political motives and not by any objective scientic actuality. Seeking to legalise ‘defensive’ weapons would thus create a win-win situation for the possessor-state, because the Outer Space Treaty would de facto leave the content of the prohibition on non-peaceful purposes to the subjective discretion of the state. Dening the term ‘peaceful’ as ‘non-aggressive’ would thus make state policy determinant of the law, which brings the apologism of the denition even more to light. not be too far wide of the mark after all. 46 Air Force Space Command, ‘Strategic Master Plan for FY02 and Beyond’ (9 February 2000), <www. spacecom.af.mil/hqafspc/library/AFSPCPAOfce/2000smp.html> (visited 14 February 2003) at 13.

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A denition of the term ‘peaceful’ as ‘non-aggressive’, while not as legally conclusive as the denition ‘non-military’, would seemingly render any military purpose in outer space peaceful and thereby lawful under the Outer Space Treaty. Owing to the lack of objective criteria to distinguish between offensive and defensive purposes, dening the term ‘peaceful’ as ‘non-aggressive’ would in effect not preclude any purpose in outer space, and would therefore be easily prone to abuse. Hence, were the term ‘peaceful’ to be dened as ‘non-aggressive’, the weaponization of outer space would presumably not fall under the prohibition on non-peaceful purposes in outer space. Unfortunately, neither would any purpose in outer space that could subjectively be labelled non-aggressive. Ultimately, a prohibition on non-aggressive purposes in outer space would be so narrow that it would de facto cover no purpose in outer space.

The Reconciling Approach It can readily be deduced from the foregoing that neither ‘non-military’ nor ‘nonaggressive’ constitutes a satisfactory denition of the term ‘peaceful’ in connection with purposes in outer space, the former being too wide to be legally justiable and the latter being too narrow to be consonant with the object and purpose of the Outer Space Treaty. Therefore, it is rather bewildering that the third option as a rule has been overlooked, namely to redene the term ‘peaceful’ so as to better comply with the object and purpose of the Outer Space Treaty. There exists no compelling legal reason why the choice of denition must be limited to ‘non-military’ or ‘nonaggressive’. Why choose between Scylla and Charybdis when adopting another course is feasible and may be more judicious? Accordingly, the reconciling approach proposed by the author of the present study seeks to elude the twin dangers of utopianism and apologism by defending a redenition of the term ‘peaceful’ in connection with purposes in outer space. For a denition of the term ‘peaceful’ to be reconciling, it must clearly sanction military purposes in outer space, but it cannot be restricted to only non-aggressive military purposes. Andem considers the declarations in the preamble of the Outer Space Treaty central to the determination of the content of the prohibition on non-peaceful purposes, and asserts that an objective analysis of the Preamble conrms that the ‘common interest of all mankind’ is the nucleus from which the rest of the provisions of the Outer Space Treaty derive their legal binding force. He further stresses that the content of this ‘common interest of all mankind’ is unambiguously dened in the Preamble of the UN Charter, and that all states must yield their individual national interests to promote and protect the common interest. Consequently, the principal object and purpose of the Outer Space Treaty

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is to safeguard the exploration and use of outer space as a perpetual and peaceful ‘province of all mankind’.47 Article I of the Outer Space Treaty validates this reasoning and elaborates on the objectives of the ‘common interest of all mankind’ as articulated in the Preamble by stipulating that: The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benet and in the interest of all countries, irrespective of their degree of economic or scientic development, and shall be the province of all mankind. Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. There shall be freedom of scientic investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.

A definition that would be consistent with the object and purpose of the Outer Space Treaty is a reconciling definition of the term ‘peaceful purposes’ that precludes not merely aggression but any military purpose that would endanger the perpetual and peaceful ‘province of all mankind’, and thereby decimate the international legal regime in outer space. Accordingly, any military purpose that would run counter to the fundamental legally binding obligations set forth in the Outer Space Treaty would fall under the prohibition on non-peaceful purposes in outer space. Under the proposed reconciling approach, all lawful non-military purposes would thus be peaceful, whereas military purposes would be peaceful only if they: 1) are for the benet and in the common interest of all mankind (Article I of the Outer Space Treaty); 2) do not restrict the freedom of exploration and use of outer space by all states (Article I of the Outer Space Treaty); 3) are compatible with international law, including the UN Charter (Article III of the Outer Space Treaty); 4) serve the maintenance of international peace and security (Article III of the Outer Space Treaty); 47

Andem, Legal Problems, supra note 17, at 210-211.

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5) promote international cooperation and understanding (Article III of the Outer Space Treaty); 6) do not inequitably exploit outer space, but have due regard for the corresponding interests of other states (Article IX of the Outer Space Treaty); and 7) do not subject outer void space or the celestial bodies to national appropriation (Article II of the Outer Space Treaty).

Since the deployment of outer space based weaponry indisputably would be a military purpose, it follows that the legality of the weaponization of outer space would subject to these seven criteria. The difculties in discerning the purpose behind weaponising outer space are, however, palpable since ‘purpose’ is concerned with the intended future use of the outer space based weaponry. As long as outer space remains non-weaponised, there is no compelling proof to substantiate theories regarding the purposes behind a prospective weaponization because, at the end of the day, they are the outcome of deductive reasoning, or put bluntly, speculations. Yet, when publicly afrmed objectives include gaining and maintaining ‘space superiority’, alarm bells should start ringing. And when the term ‘space superiority’ is dened as the ‘ability to exploit space while selectively denying it to our adversaries’, a pattern resembling a purpose begins to emerge, since this evidently would involve a full spectrum of offensive space capabilities to deny an adversary’s access to and use of space by negating his space capabilities.48 It is plain that the weaponization of outer space would fail to meet some, if not most, of the criteria for a ‘peaceful purpose’ under the reconciling approach, and would therefore presumably fall under the prohibition on non-peaceful purposes in outer space.

The Scope of the Prohibition As stated above, the term ‘peaceful purposes’ features twice in the Preamble of the Outer Space Treaty, and outer space is mentioned in connection with this term on both occasions. However, Article IV does not mention outer space in connection with peaceful purposes even once, but stipulates merely that the Moon and other celestial bodies shall be used ‘exclusively for peaceful purposes’. It may thus be argued that the scope of the prohibition on non-peaceful purposes is conclusively dened and restricted by Article IV, second paragraph of the Outer Space Treaty. By this reasoning, the prohibition on non-peaceful purposes would apply only to the Moon and other celestial bodies, wherefore any 48

US Strategic Master Plan, supra note 46, at 13 and 38.

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and all purposes would be lawful in outer void space, save for the deployment of WMD. Then again, since the preamble together with the title and the entire body of the text of the treaty provide the context in which the individual articles shall be interpreted, it may be argued that the scope of the prohibition on non-peaceful purposes cannot be conclusively dened and restricted by Article IV of the Outer Space Treaty. By this reasoning, the absence of a reference to outer space in Article IV, second paragraph cannot be construed so as to legally conrm beyond doubt that outer void space may be used other than for peaceful purposes. The determination of the scope of the prohibition on non-peaceful purposes in outer space may accordingly be sought through two approaches, to wit: the narrow approach; and the wide approach. Under the narrow approach, the scope of the prohibition on non-peaceful purposes would be conclusively dened and restricted by Article IV, second paragraph of the Outer Space Treaty so as to encompass only the Moon and other celestial bodies. Under the wide approach, the scope of the prohibition on non-peaceful purposes would be dened in the context provided by the Title and the Preamble of the Outer Space Treaty so as to encompass outer void space as well as all celestial bodies bar the Earth.

The Narrow Approach According to Cheng, no law is ‘self-executing’, wherefore, as he puts it: ‘[t]he fact that States are essentially their own law-makers and law-enforcement ofcers means that what the ordinary individual in the street may regard as unmistakably an unmitigated evil in international life cannot be simply legislated away by some at from on high.’49 International evils can thus be remedied only by the consent of the states concerned in the form of treaties, or by the concurrence of the generality of states in the form of customary international law. He further stresses that this applies no less to the weaponization of outer space than to any other matter. On these grounds Cheng argues that, since the exploration and use of outer void space nowhere in the Outer Space Treaty is conned to peaceful purposes only, the Outer Space Treaty imposes no prohibition on non-peaceful purposes in outer void space. States are therefore perfectly entitled to use outer void space for any purposes, peaceful or non-peaceful, bar the deployment of WMD.50 By this reasoning, Cheng reveals himself to be an adherent of the narrow approach, because he disregards the Title and the Preamble of the Outer Space Treaty altogether. Yet, even if the Title and the Preamble may simply be dismissed as devoid of legal 49 50

Cheng, Studies in International Space Law, supra note 18, at 523. Ibid., at 517-518 and 524.

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import and binding force, the fact still remains that the party-states express some explicit ‘recognitions’ and ‘desires’ in the Preamble. It must be conceded that, since the drafters of the Outer Space Treaty for the sake of clarity could have mentioned outer space in Article IV, second paragraph, this omission may be construed so as to leave outer void space beyond the scope of the prohibition on non-peaceful purposes. However, arguing that the Preamble cannot impose legally binding obligations is one thing, whereas claiming that the drafters explicitly in the Preamble would recognise that the exploration and use of outer space for peaceful purposes would be in the common interest of all mankind if this recognition was meant to be of no legal import may be arguing too much. If, indeed, the intention of the drafters was to restrict the scope of the prohibition on non-peaceful purposes so as to encompass only the Moon and other celestial bodies, it begs the question of why they would recognise in the Preamble that the exploration and use of outer space for peaceful purposes would be in the common interest of all mankind? It can hardly be considered as judicious and consistent law-making to recognise in the Preamble of the Outer Space Treaty that the exploration and use of outer space for peaceful purposes would be in the common interest of all mankind, and then contrary to this recognised common interest of all mankind nonetheless proceed in Article IV to legally restrict the prohibition on non-peaceful purposes so as to apply only to the Moon and other celestial bodies. If the drafters did not intend for the prohibition on nonpeaceful purposes to apply to outer void space, would it not have been more judicious and consistent to recognise in the Preamble merely that the exploration and use of the Moon and other celestial bodies for peaceful purposes would be in the common interest of all mankind? Deliberately legislating in contradiction of the explicitly recognised common interest of all mankind would hardly lend authority to the Outer Space Treaty. The narrow approach possesses yet another pitfall. Even if it could be defensibly argued that the Title and the Preamble may be dismissed as devoid of legal import or binding force, Cheng bends the truth when he claims that the exploration and use of outer void space is not conned to peaceful purposes anywhere in the body of the text of the Outer Space Treaty. For while it is true that Article IV, second paragraph is the only Article of the Outer Space Treaty that applies the term ‘peaceful purposes’, the term ‘peaceful’ in connection with the exploration and use of outer space features in two other Articles of the Outer Space Treaty, namely Articles IX and XI.51 51

The last two sentences of Article IX of the Outer Space Treaty read as follows: ‘[i]f a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity

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The pertinent provision of both Articles is the telling phrase ‘in the peaceful exploration and use of outer space’. Furthermore, by explicitly clarifying that outer space ‘includes’ the Moon and other celestial bodies, Article IX conrms that the peaceful exploration and use encompasses outer void space, and not only the Moon and other celestial bodies. All the same, given that not even the most ardent pro-weaponization campaigners are proposing to deploy weapons on celestial bodies, were the prohibition on nonpeaceful purposes to be conclusively dened and restricted by Article IV, second paragraph of the Outer Space Treaty so as to apply only to the Moon and other celestial bodies, the weaponization of outer space would fall beyond its scope. For while the prohibition on non-peaceful purposes on celestial bodies is explicit in Article IV, second paragraph of the Outer Space Treaty, Article IV, rst paragraph only prohibits the deployment of WMD in outer void space or on celestial bodies. Needless to say, this would evidently be the reason why the prospective weaponization of outer space targets only outer void space. What is more, if the scope of the prohibition on non-peaceful purposes encompasses only the celestial bodies, the content of the prohibition becomes immaterial concerning outer void space, because states would be perfectly entitled to use outer void space for nearly any non-peaceful purposes, bar the deployment of WMD.52 Under the narrow approach the weaponization of outer space would accordingly be lawful, provided that the deployed outer space based weapons are not weapons of mass destruction. Then again, even as the weaponization of outer space would fall beyond the narrow scope of the prohibition on non-peaceful purposes, it would still be an unlawful use of outer space under Article IV, rst paragraph of the Outer Space or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.’ Article XI of the Outer Space Treaty reads as follows: ‘[i]n order to promote international co-operation in the peaceful exploration and use of outer space, States Parties to the Treaty conducting activities in outer space, including the moon and other celestial bodies, agree to inform the Secretary-General of the United Nations as well as the public and the international scientic community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities. On receiving the said information, the Secretary-General of the United Nations should be prepared to disseminate it immediately and effectively.’ (Emphases added.) 52 Apart from the deployment of WMD, the Outer Space Treaty prohibits some other purposes in outer void space. Then, even as the weaponization of outer space would fall beyond the narrow scope of the prohibition on non-peaceful purposes, it would still be an unlawful use of outer space if it would subject outer void space or the celestial bodies to national appropriation (Article II), if it would be incompatible with international law, including the UN Charter (Article III), or if it would have no regard for the corresponding interests of other party-states (Article IX).

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Treaty if the proposed outer space based weapons could be regarded as weapons of mass destruction. Since the term ‘weapons of mass destruction’ generally is construed so as to encompass any weapons possessing far-reaching and large-scale destructive potential53, outer space based strike weapons could conceivably be regarded as a new concept of WMD. Rationally, it may be concluded that the prohibition on non-peaceful purposes cannot be conclusively dened and restricted by Article IV, second paragraph of the Outer Space Treaty so as to apply only to the Moon and other celestial bodies. For even if it could be defensibly argued that the Title and the Preamble of the Outer Space Treaty are devoid of legal import and binding force, the fact still remains that two individual Treaty Articles evidently defend the wide approach, whereby the scope of the prohibition on non-peaceful purposes is to be dened so as to encompass outer void space as well as all celestial bodies bar the Earth. Hence, the narrow approach fails to deliver a tenable, let alone a legally justiable, denition of the scope of the prohibition on non-peaceful purposes.

The Wide Approach The title and the preamble of the Outer Space Treaty cannot, however, simply be dismissed as devoid of legal import or binding force.54 What is more, the argument that the scope of the prohibition on non-peaceful purposes must be conclusively dened and restricted by Article IV, second paragraph of the Outer Space Treaty on the ground that only the treaty articles possess legal binding force by state consent is awed, because the party-states have no less consented to the title or the preamble than to the individual articles. It follows that the title and the preamble are far from devoid of legal import because both derive binding force from the consent of the party-states. Hence, it may be argued that the title and the preamble of the Outer Space Treaty mark the legal boundaries within which the individual articles must operate, for the title provides the Outer Space Treaty with its scope of application, and the preamble provides the Outer Space Treaty with its objective and purpose. If the title and the preamble mark the legal boundaries within which the individual articles must operate, all the provisions of the Outer Space Treaty must comply with the scope of application dened by the title. As its title indicates, the Outer Space Treaty 53

See, for instance, Heintze, ‘Peaceful Uses of Outer Space’, supra note 23, at 55. For an application of this argument in the context of the UN Charter, see Rüdiger Wolfrum, ‘Preamble’, in Bruno Simma, et al. (eds.), The Charter of the United Nations: A Commentary (2nd ed., 2 vols, Verlag C.H. Beck: München, 2002), vol. I, 33-37, at 35. 54

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is intended to govern the activities of states in outer space, ‘including’ the Moon and other celestial bodies. By ‘including’ the Moon and other celestial bodies within an extended concept of ‘outer space’, it may be inferred from the title that the intention of the drafters was for the Outer Space Treaty to apply to outer void space as well as all celestial bodies bar the Earth. Consequently, the prohibition on non-peaceful purposes cannot be conclusively dened and restricted by Article IV, second paragraph of the Outer Space Treaty so as to apply only to the Moon and other celestial bodies, because all it does is further restrict the lawful purposes under the prohibition from merely ‘peaceful’ to ‘exclusively peaceful’. Hence, Article IV, second paragraph must be construed so as to clarify the content of the prohibition on non-peaceful purposes, and not so as to restrict the scope of the prohibition. Nozari defends this reasoning when he argues that, in the context provided by the preamble, Article IV of the Outer Space Treaty stipulates that ‘the outer space and celestial bodies ... shall be used exclusively for peaceful purposes’.55 Given that some care and precision of language must be expected in the Outer Space Treaty, constituting as it does the ‘Magna Charta’ of international space law, the rst sentence of Article IV, second paragraph does indeed present a vexing conundrum. Since the Title and the Preamble cannot simply be dismissed as devoid of binding force, the scope of the prohibition on non-peaceful purposes must be construed so as to encompass outer void space as well as the Moon and other celestial bodies. Yet, the drafters either intentionally or unintentionally omitted to mention outer space in the rst sentence of Article IV, second paragraph and explicitly stipulated only that the Moon and other celestial bodies shall be used exclusively for peaceful purposes. Be that as it may, it should be borne in mind that individual treaty articles according to the general rule of interpretation in Article 31 of the Vienna Convention shall be interpreted bona de in the light of the object and purpose of the treaty. When dened in the context provided by the Title and the Preamble of the Outer Space Treaty, it becomes plain that the scope of the prohibition on non-peaceful purposes must encompass outer void space as well as the Moon and other celestial bodies. Equally plain is the fact that only exclusively peaceful purposes can be lawful under this prohibition. Claiming that Article IV, second paragraph must be construed so as to sanction nonpeaceful purposes in outer void space would thus be to read the Outer Space Treaty as the devil reads the Bible. Notwithstanding the vexing lack of reference to outer space in Article IV, second paragraph of the Outer Space Treaty, the only legally justiable conclusion to be drawn is that the regrettable omission in Article IV, second paragraph cannot be construed so as to legally conrm beyond doubt that outer void space may 55

Nozari, The Law of Outer Space, supra note 29, at 39.

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be used other than for exclusively peaceful purposes, since this would be a mala des interpretation of said provision. It may thus be concluded that, since the Title and the Preamble of the Outer Space Treaty mark the legal boundaries within which the individual articles must operate, the scope of the prohibition on non-peaceful purposes must be dened so as to encompass outer void space as well as all celestial bodies bar the Earth, and Article IV, second paragraph must be construed so as to clarify the content of the prohibition and not so as to restrict the scope of the prohibition. Hence, the prohibition on non-peaceful purposes would be fully applicable to outer void space.

War and Peace in Outer Space: Conclusion The principal object and purpose of the Outer Space Treaty is to safeguard the exploration and use of outer space, including the Moon and other celestial bodies, as a perpetual and peaceful ‘province of all mankind’. In order to achieve this end, the Outer Space Treaty imposes a core prohibition on non-peaceful purposes in outer space. Regrettably however, the prohibition on non-peaceful purposes in the Outer Space Treaty was either intentionally or unintentionally drafted so as to allow a wide compass of interpretation regarding both its content and its scope. Regarding the determination of the content of the prohibition on non-peaceful purposes in outer space, the author of the present study proposes a reconciling redenition of the term ‘peaceful’. Under this reconciling redenition, all lawful nonmilitary purposes would be peaceful, whereas military purposes would be peaceful only if they meet all of the seven legal criteria stipulated by the provisions of the Outer Space Treaty. One may safely argue that the deployment of outer space based weaponry indisputably would be a military purpose, wherefore the weaponization of outer space would be subject to these seven treaty-based criteria. In the light of the foregoing it becomes plain that the weaponization of outer space would fail to meet some, if not most, of the legal criteria for a ‘peaceful purpose’ under the reconciling redenition, and would therefore constitute an unlawful use of outer space under the Outer Space Treaty. Regarding the determination of the scope of the prohibition on non-peaceful purposes in outer space, by ‘including’ the Moon and other celestial bodies within an extended concept of ‘outer space’, it may be inferred from the Title that the intention of the drafters was for the Outer Space Treaty to apply to outer void space as well as all celestial bodies bar the Earth. Further, the wording of Article IV, rst paragraph

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in the draft treaty56 unmistakably suggests that the intention of the drafters of the Outer Space Treaty was to prohibit the deployment of any and all outer space based weapons, and not only WMD. Then, since the scope of the prohibition on non-peaceful purposes must encompass outer void space as well as all celestial bodies bar the Earth, it is immaterial if the prospective weaponization of outer space targets only outer void space or what kind of weaponry is being designed for deployment in outer space. Any weaponization of outer space would contravene the prohibition on non-peaceful purposes in the Outer Space Treaty and constitute an unlawful use of outer space. Having said this, there nevertheless exists an urgent need for an expansion of the contemporary international legal framework of outer space, but views differ on how best to achieve this objective. There are basically three options: amending the by now rather dated Outer Space Treaty; negotiating an additional protocol to it; or drafting a new international legal instrument explicitly banning warfare and weaponry in outer space. It is hard not to concur with Johnson when she voices misgivings about any renegotiation of the Outer Space Treaty. Such well-intentioned but misguided attempts might open the oodgates to arguments that this treaty is obsolete and should be revoked. Hence, while expanding the legal framework established by the Outer Space Treaty undeniably is of primary concern to those who wish to forestall the weaponization of outer space, seeking to amend the Treaty could end in its downfall; an auspicious turn of events for those who presently feel hampered even by its few and nebulous connes. In the end, seeking to expand the legal framework by renegotiating the Outer Space Treaty would be a double or quits gamble.57 Negotiating an additional protocol to the Outer Space Treaty or drafting a new, multilateral treaty explicitly banning warfare and weaponry in outer space58 would therefore seem to be the only practicable options, for while this may not exempt the Outer Space Treaty from attacks by the pro-weaponization campaigners, it would leave its core prohibition against WMD in outer space safely enshrined in international law.59 However, in the light of the unrelenting opposition by the pro-weaponization 56

GA Res. 2222 (XXI), 19 December 1966. Rebecca Johnson, ‘Multilateral Approaches to Preventing the Weaponization of Space’, 18 INESAP Information Bulletin Issue (2001) 71-74 at 74, < www.inesap.org/pdf/inesap18.pdf> (visited 15 June 2006). 58 In a letter dated 27 June 2002, a working paper entitled ‘Possible Elements for a Future International Legal Agreement on the Prevention of the Deployment of Weapons in Outer Space, The Threat or Use of Force Against Outer Space Objects’ was transmitted to the Conference on Disarmament from the permanent representatives of the People’s Rebublic of China and the Russian Federation. In the proposed treaty therein, one of the basic obligations would be ‘[n]ot to place in orbit around the Earth any objects carrying any kinds of weapons, not to install such weapons on celestial bodies, or not to station such weapons in outer space in any other manner.’ UN Doc. CD/1679 (28 June 2002). 59 Johnson, ‘Multilateral Approaches’, supra note 57, at 74. 57

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campaigners to any negotiation of a new international legal instrument further regulating the military uses of outer space, the prospects for an expansion of the contemporary international legal framework are at present bleak. Yet, there can be no doubt that the weaponization of outer space would turn this realm into a medium of warfare akin to land, sea and air. For it must be assumed that the possessor-state intends to use this outer space based weaponry once it is deployed. Any other assumption would defy reason. Since weaponry is an essential and indivisible part of any use of armed military force, it follows that the deployment of weaponry in outer space would inevitably bring outer space into the theatre of war and armed conict. Thus the weaponization of outer space may become the coup de grâce to the perpetual and peaceful province of all mankind.

Reections on Soft International Law in a Privatized World Jan Klabbers*

Introduction In Jack Reacher, British-born crime novelist Lee Child has truly created a hero for the post-modern, globalized world. Reacher (make no mistake: no one calls him Jack) is the son of a US army ofcer and a French mother, both deceased, and grew up on army bases all over the world. He lives alone, without relatives or signicant other: his only brother is dead, and the one-time more or less steady if reluctant girlfriend has gone to live on a different continent. Reacher himself lives, literally, everywhere and nowhere throughout the United States: he has no place he calls home, no xed address; all he has is a bank account, which he can access through Western Union and where his military pension is deposited: ttingly, he was honourably discharged following the end of the Cold War. He travels all the time, hitchhiking or by bus, and he travels light, without any possessions other than a tooth brush: he buys his clothes in cheap second-hand stores, and wears them until they can no longer be worn, at which point he discards them and buys something else, without bothering about style, fashion or other late-modern anxieties. And when embroiled in a ght (which, betting a crime novel hero, happens on occasion), he does not care too much about the law; instead, he cares predominantly about his own sense of right and wrong, of whom to trust and whom to mistrust, of what to do and what not to do. To be sure, the law is a factor in all this, but not the only one, and possibly not even the most important one: Reacher is virtuous (in the sense in which someone like Aristotle would have used the term) and

Dr Jan Klabbers is Professor of International Organizations Law at the University of Helsinki, Finland, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. This article was rst published in Lakimies 7-8/2006 and is reproduced here with the kind permission of Lakimies.

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has a well-developed sense of morality, but he is not necessarily law-abiding. Reacher then is the perfect hero for today’s globalized world: he is, quite literally, de-territorialized and, in a deep sense, individualist, having no permanent ties to anyone or anything in the world: no lasting personal relationships, no lasting professional relationships. Whatever authority he represents is the authority of virtue and force, vaguely straddling the line between public and private: a former soldier, but not quite a private mercenary or bounty hunter. All he wants is to be left alone and follow his interests; but then there is always a damsel in distress, an old buddy in need, or occasionally a government branch desperate for his services, and so a new adventure commences.

Delimiting Soft Law To start a paper on soft law by introducing a crime novel hero may, at rst sight, seem somewhat eccentric, but there is a good reason for doing so: Reacher’s cavalier attitude towards the law is reected in, and itself a reection of the cavalier attitudes with which professional academic international lawyers have approached the law in recent decades, and symbolizes today’s normative pluralism. Like today’s international lawyers in a globalized and post-modern world, Reacher takes his normative guidance from wherever he can nd it, displaying a profound disregard for such things as formal sources doctrine, the distinction between law and morality or whether normative guidance springs from public or private authority: his great hero, and pretty much the only person he will listen to, is his former commanding ofcer, now retired, and formally in no position to give orders any more.1 International lawyers have talked about soft law since the 1970s, deftly using the epistemological possibility of speaking in different terms of law’s binding nature and creating a category alongside the familiar ‘hard’ law (which, while alone, never was called ‘hard’, of course). Those early discussions on soft law still often put the term in inverted commas and were really in the nature of identication or diagnosis (‘There is such a thing as “soft law’’’) combined with somewhat hesitant explanations as to its role in the grander scheme of things (‘“Soft law” is what we nd in the absence of hard law’).2 1

By way of illustration, a recent collection of papers on transatlantic cooperation is premised on the thought that there are three modalities of cooperation: through regulatory networks, ad hoc or routine cooperation, and cooperation by means of international law (i.e. treaties). See Kari Möttölä (ed.), Transatlantic Relations and Global Governance (Johns Hopkins University Press: Washington DC, 2006). 2 Typically, René-Jean Dupuy, ‘Declaratory Law and Programmatory Law: From Revolutionary Custom to “Soft Law’’’, in R.J. Akkerman et al. (eds), Declarations on Principles, a Quest for World Peace (Liber Röling)

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This early phase was succeeded, during the 1980s and early 1990s, by what may well be called a justicatory phase: how to justify that, in a profession which tended to address law predominantly in binary terms (legal/illegal, binding/non-binding), nonetheless a distinction could be made along the gradations of the binding nature of instruments.3 Most of these writings took on a more or less functionalist approach (‘Soft law is a good thing, as a soft agreement is better than no agreement at all’), and in doing so ended up rejecting the binary code of law altogether. The 1990s, despite some critical reviews of the soft law phenomenon,4 turned out to be predominantly a period of consolidation, and by now it seems well established among international lawyers that soft law exists, that it has its functional uses and, to a wide majority, is quite simply a good thing, and no longer solely as the poorer cousin to hard law. Hard law is preferred whenever regulation is thought to need a coercive touch; soft law is deemed to be more appropriate as a tool of persuasion.5 And to some extent, a soft approach has inltrated not just the doctrines relating to sources, where soft law initially started and is still generally located, but other areas as well, none perhaps more so than compliance and enforcement: in particular amongst international environmental lawyers, there is widespread agreement that the environment might be better off if actors were being persuaded into compliance instead of being forced to comply with norms: gentle pressure, or carrots rather than sticks.6 (Sijthoff: Leiden, 1977) 247-257; Tadeusz Gruchalla-Wesierski, ‘A Framework for Understanding “Soft Law”’, 30 McGill Law Journal (1984) 37-88. 3 See, amongst many others, Christine Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’, 38 International and Comparative Law Quarterly (1989) 850-866; Ulrich Fastenrath, ‘Relative Normativity in International Law’, 4 European Journal of International Law (1993) 305-340; and to some extent (embracing the binary code though) Wolfgang Heusel, “Weiches” Völkerrecht (Nomos: Baden-Baden, 1991). 4 See Jan Klabbers, ‘The Redundancy of Soft Law’, 65 Nordic Journal of International Law (1996) 167-182; Jan Klabbers, ‘The Undesirability of Soft Law’, 67 Nordic Journal of International Law (1998) 381-391. For theoretical elaboration see also Jan Klabbers, The Concept of Treaty in International Law (Kluwer Law International: The Hague, 1996). 5 Treaty design has become a fashionable topic, and works on the understanding that the formal binding force of agreements is subject to negotiations. See in particular Andrew Guzman, ‘The Design of International Agreements’, 16 European Journal of International Law (2005) 579-612. See generally also Dinah Shelton (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford University Press: Oxford, New York, 2000). 6 See already Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Harvard University Press: Cambridge MA, 1995); more specic, Tuomas Kuokkanen, ‘Putting Gentle Pressure on Parties: Recent Trends in the Practice of the Implementation Committee under the Convention on Long-range Transboundary Air Pollution’, in Jarna Petman & Jan Klabbers (eds), Nordic Cosmopolitanism: Essays in International Law for Martti Koskenniemi (Brill Publishing: Leiden, 2003) 315-326. For a critique, see Jan Klabbers, ‘Compliance Procedures’, in Dan Bodansky et al. (eds), Oxford Handbook of International Environmental Law (Oxford University Press: Oxford, 2007) 995-1009.

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All this should not come as a surprise: the bureaucratization of politics has brought with it the virtual absence of responsibility: where bureaucracies apply standards, responsibility vanishes into thin air. As Hannah Arendt observed more than half a century ago, in modern bureaucracies nobody rules, and hence nobody is responsible.7 Administrators merely apply standards; they do not make them. And those who make the standards merely make soft law: surely they cannot be held responsible for things that are only ‘soft’ to begin with. The very attempt, recently, of establishing something approaching global administrative law is inspired precisely by this accountability decit.8 Indeed, underneath the broad consensus concerning the utility of soft law resides an element of discomfort, which manifests itself in a variety of ways. For one thing, in its effects soft law is often indistinguishable from hard law. It is drafted in similar ways; it comes, like hard law, with its own loopholes and exceptions, and indeed, when applied by courts and tribunals it typically gets to be applied as if it were hard law: as a treaty provision, or as a rule of customary international law.9 This then provokes the obvious question: if soft law and hard law are really indistinguishable, then what is the point of differentiating between them? It is, here, then that doubts creep in: the most obvious point where they differ relates to their acceptance by domestic democratic bodies. Typically, treaties need to be approved by parliaments under domestic treaty making rules; equally typically, governments have a free hand when it comes to concluding instruments that are not, formally, treaties, such as soft law instruments. A related problem is that any denition, or even any broader concept of soft law, has so far proved highly elusive. The one thing that is clear when international lawyers address soft law is that they are not addressing hard law; what is unclear, however, is what is included in the soft law concept. Some would include such things as (ostensibly) non-legally binding declarations; others make the point that if something is not legally binding, it cannot be softly legally binding either. Some would include highly discretionary provisions in otherwise hard treaties;10 others might point out that this would render everything into more or less soft law, as most (perhaps all) treaty provisions leave some room for discretion, and when they do not, they are so unsophisticated

7

See Hannah Arendt, ‘From Hegel to Marx’, in Hannah Arendt, The Promise of Politics (Schocken Books: New York, 2005, Kohn ed.) 70-80 at 77. 8 See e.g. Benedict Kingsbury et al. (eds), ‘The Emergence of Global Administrative Law’, 68 Law and Contemporary Problems (2005); Nico Krisch & Benedict Kingsbury (eds), ‘Global Governance and Global Administrative Law in the International Legal Order’, 17 European Journal of International Law (2006). 9 See Klabbers, ‘The Redundancy’, supra note 4. 10 This is done in particular by those coming from domestic law, and might suggest that to domestic lawyers, thinking in terms of different degrees of bindingness is not second nature. And if that is so in domestic law, why should it be different in international law?

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as to be castigated as ‘idiot rules’.11 Some would include resolutions emanating from international organizations; others might suggest that such organizations, or their organs, usually lack the power to make law, and therefore lack the power to make soft law as well.12 And yet others suggest that everything that somehow comes to be seen as providing normative guidance to actors must, somehow, be law, be it hard or soft,13 to which others can then reply that if the normative effects are what matters, then everything can be law, and if everything is law, then nothing is.14 And then there are the more (or more overtly) political or ideological objections that soft law seems to suggest both that compliance can be a matter of degree and thus be subject to negotiations, and that soft law is one emanation of the commodication of international law: it suggests that we use law when useful, and use something else (whatever that something else may be: force, coercion, pressure, an appeal to morality or legitimacy or effectiveness) when somehow using law would be disadvantageous or ineffective or illegitimate. It is not rocket science to predict whose concept of compliance, or advantageousness, or efciency, or legitimacy, will prevail.15 Underlying the soft law discussion, no matter how varied it may otherwise be, is the presumption that somehow, despite being soft, soft law nonetheless still has to do with the exercise of public power by public authorities. This is most visible perhaps in the context of European Union law, where soft law is typically treated as an alternative way to exercise public power:16 if a Regulation cannot be agreed upon, or would be difcult to defend in light of the Union’s scope of legislative powers, or otherwise be undesirable from the legislator’s point of view, then a resolution, a code of conduct, or an action program might be more advisable. But either way: the instruments emanate from the legislative authorities, and clearly aim to exercise public power, however softly perhaps. The European Court of Justice (ECJ) has understood this very well

11

The term is gratefully borrowed from Thomas M. Franck, The Power of Legitimacy among Nations (Oxford University Press: New York, Oxford, 1990). 12 See, e.g., Gaetano Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law (Sijthoff & Noordhoff: Alphen aan den Rijn, 1979). 13 So José E. Alvarez, International Organizations as Law-Makers (Oxford University Press: Oxford, New York, 2005). 14 See Jan Klabbers, review of José Alvarez, ‘International Organizations as Law-Makers’, 3 International Organizations Law Review (2006) 153-158. 15 For such a critique, see Jan Klabbers, ‘The Commodication of International Law’, in Emmanuelle Jouannet & Hélène Ruiz-Fabri (eds), International Law: Do We Need It? (Hart Publishing: Oxford, forthcoming). 16 See Karel Wellens & G.M. Borchardt, ‘Soft Law in European Community Law’, 14 European Law Review (1989) 267-321; Francis Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’, 56 Modern Law Review (1993) 19-54.

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too, and has not hesitated to apply soft instruments whenever appropriate.17 A possible consequence, though, might be that the very notion of soft law will take on different dimensions when placed against the background of a legal order in which the rigid distinction between public and private spheres is no longer generally accepted.18 Put differently: what is the effect of the fading out of the public/private distinction on the concept of soft law?

Who Governs? It is axiomatic to state that there is a process of globalization going on. Economic trafc between states is steadily increasing; cultural osmosis is taking place, with television audiences in pretty much every European state being able to watch a local version of the same game shows and reality shows; political cooperation is an everyday affair, with dignitaries as well as lower ranking civil servants spending lots of time in meetings and networks abroad. Traditional boundaries, both geographical and disciplinary, are slowly but surely eroding;19 the world has, for all practical purposes, become a global marketplace, and one of the key problems emerging in that global marketplace is that it is no longer self-evident who governs,20 or how governance takes place.21 One of the underlying arguments often heard when discussing globalization and such things as the human rights obligations of companies resides precisely in the idea that public power has leaked away to corporations (amongst others22), in at least two ways. In one sense, some private actors are exercising functions hitherto generally considered to be public functions, such as the running of prisons or even the waging

17

The leading case is Case C-322/88, Salvatore Grimaldi v. Fonds des Maladies Professionelles, [1989] ECR 4407. 18 For a brief rendition of the problems associated with the public/private distinction against the background of the law on state responsibility, see Christine Chinkin, ‘A Critique of the Public/Private Dimension’, 10 European Journal of International Law (1999) 387-395. 19 See, e.g., Lawrence M. Friedmann, ‘Borders: On the Emerging Sociology of Transnational Law’, 32 Stanford Journal of International Law (1996) 65-90. 20 It may be useful to note, incidentally, that the term ‘transnational law’ was already coined four decades ago, and has retained much of its substance. See Philip C. Jessup, Transnational Law (Yale University Press: New Haven CT, 1966). 21 See already James N. Rosenau & Ernst-Otto Czempiel (eds), Governance without Government: Order and Change in World Politics (Cambridge University Press: Cambridge, 1992). 22 For a balanced assessment, see Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press: Oxford, 2006).

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of war.23 To the extent that private actors exercise public functions, it stands to reason to expect that they be held to the same standards of accountability as their public counterparts. Second, there is a sense, or suspicion, that corporations actually call the shots: Microsoft, as the argument often goes, is wealthier than, say, Luxembourg, and thus, in a fairly crude and vaguely Marxist argument, will no doubt also have more power than Luxembourg. Others, such as John Gray – never afraid to question received wisdom – assert that, in reality, corporations are about as confused as the rest of us: they do not run the world. Instead, they too are subject to the dictates of the global marketplace: ‘The reality of the late twentieth-century world market is that it is ungovernable by either sovereign states or multinational corporations.’24 Indeed, he goes even further and asserts that the global market, far from strengthening the position of the transnational corporation, has actually weakened it: corporations are subject to the same ‘loss of authority and the erosion of common values that aficts practically all late modern social institutions.’25 No one knows what Adam Smith’s invisible hand will be up to next; no one is able to control it.26 Either way, though, public functions and actors and private functions and actors can no longer be neatly separated, if that was ever plausible to begin with. The American philosopher John Dewey pointed out, already eight decades ago, that classications of what are public and what are private activities may uctuate over time:27 religion, once a public affair, has come to be seen as predominantly private in nature, at least in Western secularized opinion. By contrast, criminal punishment, which once gave rise to private feuds and vendettas, has come to be regarded as a public affair, as has, to a large extent, education.28

23

See Katja Nieminen, ‘The Rules of Attribution and the Private Military Contractors at Abu Ghraib: Private Acts or Public Wrongs?’, 15 Finnish Yearbook of International Law (2004) 289-319. 24 See John Gray, False Dawn: The Delusions of Global Capitalism (Granta: London, 1998) at 70. 25 Ibid., at 63. 26 In a similar vein, it has been noted that the malleability of society is no longer plausible. See, in Dutch, René Boomkens, De nieuwe wanorde: Globalisering en het einde van de maakbare samenleving (Van Gennep: Amsterdam, 2006). 27 See John Dewey, The Public and its Problems (Ohio University Press: Athens OH, 1954 (rst published 1927)). 28 It seems eminently plausible that the furore over Hannah Arendt’s classic piece on school segregation owes much to an underlying dispute whether education is largely a private matter, or largely a public affair. Arendt clearly was of the former opinion; many of her critics however were of the latter. See Hannah Arendt, ‘Reections on Little Rock’, as reproduced in Peter Baehr (ed.), The Portable Hannah Arendt (Penguin: London, 2000) 231-246. For an overview of Arendtian thought, see Jan Klabbers, ‘Possible Islands of Predictability: The Legal Thought of Hannah Arendt’, 20 Leiden Journal of International Law (2007) 1-23.

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Governments these days delegate (‘outsource’) public tasks to private actors, while also aiming to inuence the behaviour of private actors through means derived from private law. Thus, for the past two or three decades, governments in western Europe have aimed to institutionalize environmental protection not only through classic instruments (administrative law, criminal law), but also by concluding so-called ‘regulatory agreements’ with companies that engage in the production of hazardous products or whose regular operations generate waste, to minimize or eradicate their pollution. Likewise, governments may engage in regulatory agreements when it comes to labour conditions, public health or public housing, or education.29 Conversely, governments or industries have come to adopt standards set by private – or hybrid, part public, part private – bodies, one of the most successful examples being the standards set by the International Organization for Standardization (ISO).30 Such standards aim at inuencing the behaviour of private parties and, at least in part, emanate from the private sector; yet their operation is about as public as it can get. In human rights discourse, various sets of principles have been developed, by private initiative, over the last couple of decades to urge corporations to respect human rights in specic settings (the Sullivan principles concerning apartheid, the MacBride principles covering Northern Ireland) or more generally – and arguably less successfully – by public authority, under auspices of the OECD and the ILO.31 Most sobering of all, a convention regulating the behaviour of transnational corporations, in the works since the 1960s within the UN system, has yet failed to materialize. Instead, the UN SecretaryGeneral launched, a few years ago, the so-called Global Compact: Non-binding and, in an important sense, source-less, with the UN merely functioning as a clearing-house for corporations that voluntarily wish to subscribe to the principles on human rights, environmental protection and labour law enunciated in the Compact.32 Indeed, much energy has been and is invested in creating a ‘compliance pull’ by pointing to the social responsibility of corporations and pointing out that adherence to certain standards benets them as well.33 29

A very useful early analysis (in Dutch, alas) is F.J. van Ommeren & H.J. de Ru (eds), Convenanten tussen overheid en maatschappelijke organisaties (Sdu Juridische en Fiscale Uitgeverij: The Hague, 1993). 30 See, e.g., Naomi Roht-Arriaza, ‘“Soft Law” in a “Hybrid” Organization: The International Organization for Standardization’, in Shelton (ed.), Commitment and Compliance, supra note 5, 263-281. The use of inverted commas suggests the extent to which traditional categories have exploded, both when it comes to sources doctrine and subjects doctrine. On the latter, see also Jan Klabbers, ‘Institutional Ambivalence by Design: Soft Organizations in International Law’, 70 Nordic Journal of International Law (2001) 403-421. 31 See, e.g., Christopher McCrudden, ‘Human Rights Codes for Transnational Corporations: The Sullivan and McBride Principles’, in Shelton (ed.), Commitment and Compliance, supra note 5, 418-449. 32 For an in-depth discussion, see Viljam Engström, Realizing the Global Compact (The Erik Castrén Institute: Helsinki, 2002). 33 See for instance the small booklet by Jan van der Kaaij (ed.), Into the World of Corporate Social Responsibility

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With the disappearing public/private distinction, normative guidance has also come to be seen to be in ux. There is no certainty anymore that an international norm – the term is used in its generic sense – actually reects a legal rule, or something else. Students of international affairs have come to realize that even provisions in hard and fast treaties cannot with certainty be said to reect legal commitments: think only of the infamous part IV of GATT, which gives the impression of doing nice things for the developing world without actually conceding much, or the notorious article 5 of the NATO treaty (allowing member states to assist each other in self-defence, but not obligating them) which, as Michael Glennon once memorably put it, contains ‘a clear element of noncommitment in the commitment’.34

Answers? This raises the question how (if at all) international lawyers have come to respond to the prevailing uncertainty: how do international lawyers deal with the problem of separating proper from improper authority? Some have clawed back to earlier times and, in bouts of nostalgia, suggested that the discipline should maintain a fairly clear dividing line between law and non-law, and not allow any shades of grey to interfere.35 The law, as Prosper Weil famously suggested, owes much of its utility to its ‘simplifying rigor’, its ability to turn the complexities of moral and political debate into workable dyads of right and wrong, legal and illegal, binding and non-binding: throwing this away would, as the saying goes, throw out the baby with the bathwater.36 Others have come up with attempts, not always equally successful, to re-work sources doctrine and try and accommodate as many normative utterances as possible. Van Hoof, writing in the early 1980s and following his mentor Bos, aspired to reformulate the sources of international law in terms of ‘recognized manifestations of consent’, therewith abandoning most formal aspects of law-making in favour of substance. On this note, a resolution emanating from an international organization could be taken as law (under certain circumstances) as long as it was clear that states consented to it, and regardless of the circumstance that according to the (Between us: Breda, 2005). Van der Kaaij is a corporate social responsibility consultant working in the Netherlands. 34 See Michael J. Glennon, Constitutional Diplomacy (Princeton University Press: Princeton, 1990) at 214. 35 Perhaps a leading example is Robert Y. Jennings, ‘What is International Law and How Do We Tell It When We See It?’, 37 Schweizerisches Jahrbuch für Internationales Recht (1981) 59-88. 36 See Prosper Weil, ‘Towards Relative Normativity in International Law?’, 77 American Journal of International Law (1983) 413-442.

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constituent documents of international organizations, resolutions usually have no binding force.37 More recently, José Alvarez suggested in a hefty tome that whenever a rule has normative effect, it must be seen as a legal rule.38 The problem with this, obviously, is that one cannot tell law from non-law until after some rule or other has been invoked or applied: one has to await the ‘normative ripples’ before anything meaningful about the contents of the law can be said. While Alvarez’ approach does justice to the guiding authority of all sorts of instruments, like Van Hoof he too ends up denying a role for the formal characteristics of rules. But perhaps it is fair to suggest that many international lawyers just go with the ow, and seem to work on the notion that if the distinction between law and nonlaw is no longer clear, then this may actually be benecial for instrumental purposes. As a result, a hard treaty to protect the environment is no longer needed: a soft law, developed by expert civil servants meeting outside the public view in networks, and without being accountable to anyone, may develop norms that are just as effective, or quite possibly even more effective.39 As a result, hard norms to protect human rights or the environment or the global commons, or whatever, are no longer strictly needed; a general comment emanating from an authoritative body, self-regulation by industries, the pressures of public opinion as demonstrated by consumer boycotts, all of these may be building bricks in a wall of normativity: Chayes and Chayes, appropriately, speak of enticing actors with carrots.40 Still, that raises the obvious question: who gets to decide on the carrots? Who gets to wave the carrots in front of actor’s noses? And whose concept of effectiveness is being applied? To some extent, international lawyers have responded not so much by concentrating on sources doctrine, but rather on bypassing the sources question altogether: instead, some have concentrated on what would otherwise be subsequent aspects: conict of norms41 (without specifying whether the norms at issue are law strictly speaking, and if so, what source they stem from or whether that is relevant to begin with) or interpretation of texts: not just of treaties, but of other instruments as well: typical 37

See G.J.H. van Hoof, Rethinking the Sources of International Law (Kluwer Law and Taxation Publishing: Deventer, 1983). 38 See Alvarez, International Organizations, supra note 13. 39 See Anne-Marie Slaughter, A New World Order (Princeton University Press: Princeton, New Jersey, 2004). But, as Bauman perceptively observes, ‘[i]n a network, connecting and disconnecting are equally legitimate choices… In a network, connections are entered on demand, and can be broken at will’. See Zygmunt Bauman, Liquid Love (Polity Press: Cambridge, 2003) at xii. 40 See Chayes & Chayes, The New Sovereignty, supra note 6. 41 See e.g. Joost Pauwelyn, Conict of Norms in Public International Law (Cambridge University Press: Cambridge, 2003).

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has been the drive within the WTO to subject the Doha declaration (formally, quite possibly, a non-binding document) to the established rules on treaty interpretation.42 Theoretically perhaps the most interesting response has been the attempt to come to terms with the de-territorialization and deformalization43 of law by formulating something of a general theory, or general jurisprudence. At least two strands can be discerned, both of them to some extent coloured by the manner in which they pose the problem. Following the sociologist Niklas Luhmann and the briey popular regime-studies that made some waves among international relations scholars in the early 1980s,44 Gunther Teubner and, in his wake, Andreas Fischer-Lescano have developed ideas according to which the main actors in world politics and international law are no longer territorial units called states, but are, instead, functional regimes. On this line of thought, there is a trade regime, a human rights regime, an environmental protection regime, a disarmament regime, et cetera, and all those regimes are, to some extent, self-contained, in that the environmental regime is composed of environmental experts and activists, and will look at normative issues through the environmentalist glasses worn by the members of the environmentalist epistemic community. The trade community does much the same, as does the community of human rights specialists. Indeed, forays by outsiders into some other regime are usually regarded with disdain, or even shock, as when the Court of First Instance of the EU, normally engaged with trade and competition-related issues, decided on the human rights aspects relating to UN sanctions.45 And within those regimes, it becomes next to impossible to say which criteria determine the validity of any given rule, or where one should even begin to look for decisions on validity and normativity.46 The law, in a word, is self-legitimating, but that is obviously problematic. The only way out, it would seem, is to look for scandals as source of validity of legal norms: the scandals make the rules: public outrage over, say, Darfur, turns what happens there into genocide.47 Or, in other words: while humans in 42

For a discussion, see Jan Klabbers, ‘On Rationalism in Politics: Interpretation of Treaties and the World Trade Organization’, 74 Nordic Journal of International Law (2005) 405-428. 43 Others add a third development: the building of empire. Empire-building is, however, not so much an academic theory as it is a practical possibility. It does have some (quasi-)academic support though. See, e.g., Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (Oxford University Press: New York, 2005). 44 The seminal study is Stephen D. Krasner (ed.), International Regimes (Cornell University Press: Ithaca NY, 1983). 45 See Case T-306/01, Yusuf & Al Barakaat v Council & Commission, and Case T-315/01, Kadi v Council & Commission, judgments of 21 September 2005, available at <curia.eu.int>. A brief early comment is Ramses A. Wessel, ‘The UN, the EU and Jus Cogens’, 3 International Organizations Law Review (2006) 1-6. 46 See Gunther Teubner, ‘Global Private Regimes; Neo-Spontaneous Law and Dual Constitution of Autonomous Sectors?’, in Karl-Heinz Ladeur (ed.), Public Governance in the Age of Globalization (Ashgate Publishing: Aldershot, 2004) 71-87 at 78-79. 47 See Andreas Fischer-Lescano, ‘Die Emergenz der Globalverfassung’, 63 Zeitschrift für auslandisches öffentliches

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all their plurality may not be able to agree on what constitutes the good life, it may just be possible to agree on the bad life once it unfolds before our eyes.48 Still, the boundary between law and non-law, or hard and soft law,49 has become impossible to draw with any degree of certainty in advance, and yet, the one thing that differentiates law from sociology is the invocation of some rule or other as a legal rule, in terms of the binary code following which behaviour is either legal or illegal, but cannot be something in-between.50 This almost inevitably leads to the crude conclusion that if enough people shout that the treatment of US prisoners of war in Guantanamo is illegal, it actually will be illegal, even though a precise source for the legal claim cannot be produced. And obviously, the reverse would hold true as well: if enough people shout that what the US is doing is legal, then it will be: whoever shouts the loudest, wins.51 Self-contained as those functional regimes may be, they do communicate with each other. Or rather, they would do so properly on the basis of a global constitution, marking the unity of the law at the international level. Such a constitution exists, according to Teubner and Fischer-Lescano, but is still riddled with internal contradictions, and does not – and cannot – establish a hierarchy of sources.52 Instead, traditional hierarchy of norms is replaced by thinking in terms of centre and periphery: courts occupy the centre of law, while social organizations, in the broadest sense of the term (NGOs, corporations, churches), occupy the periphery and are closely in touch with social sectors, thus guaranteeing a constant interaction between law and society.53 Recht und Völkerrecht (2003) 717-760 at 752. 48 The same thought is implicit in Andrew Linklater, The Transformation of Political Community (Polity Press: Cambridge, 1998), and, to a greater extent perhaps, in some of the writings of Zygmunt Bauman. See, e.g., his Postmodernity and its Discontents (Polity Press: Cambridge, 1997). 49 Note that Teubner himself uses the term soft law in a different sense than I have used it here: soft law, for him, is a matter not of formal characteristics but of contents: a law rich in principles and values but without too many specic rules would be ‘soft’. See Gunther Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’ in Gunther Teubner (ed.), Global Law Without a State (Dartmouth: Aldershot, 1997) 3-28 at 21. 50 Ibid., at 14. 51 And should legal argument fail to convince, one can always invoke legitimacy. As Koskenniemi caustically puts it: ‘By saying “legitimacy” as often as possible and in connection with as many and as controversial political actions as possible, actions that cannot be seriously discussed in terms of their lawfulness or moral substance, receive a sense of acceptability and naturalness…’ See Martti Koskenniemi, ‘Legitimacy, Rights, and Ideology: Notes Towards a Critique of the New Moral Internationalism’, 7 Associations (2003) 349-373 at 368. 52 A more traditional answer, concentrating on the unifying role of general international law, is Bruno Simma & Dirk Pulkowski, ‘Of Planets and the Universe: Self-contained Regimes in International Law’, 17 European Journal of International Law (2006) 483-529. 53 See Andreas Fischer-Lescano & Gunther Teubner, ‘Regime-Collisions: The Vain Search for Legal

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Where the starting point for Teubner and Fischer-Lescano is a perception of social reality (‘…if global law is reduced to include only those legal developments that take place in consensual statal proceedings, then a multitude of social phenomena are [sic] excluded’54), others have started to develop a global jurisprudence from a more theoretical vantage point. This applies in particular to William Twining, who aims to develop a general jurisprudence to come to terms with globalization and incorporating both sources emanating from state power and other sources, and by building predominantly on Bentham.55 Brian Tamanaha rejects the idea that law is but a reection of society, and aims to present a non-essentialist legal pluralism, acknowledging that normative guidance can stem from a variety of sources, private as well as public and anything hybrid or in-between. Law, for him, is, in the end, ‘whatever people recognize and treat as law through their social practices.’56 In such a conception, sources doctrine becomes redundant; there is no distinction between law and non-law based on where the norms nd their origin, or who enacts them, or whether they are somehow legitimate. Instead, the coin is reversed: if people follow rules, we may well presume that those rules are legitimate. Finally, Santos too posits a pluralism of sorts (a highly politicized pluralism), in which law is supposed to be activist. To his mind, law stems from the tension between regulation and emancipation, and since regulation has come to prevail, the emancipatory character of law ought to be stressed. On this view too, there is no particular need for a theory of sources to determine the law’s validity.57

Democracy Concerns The above responses by international lawyers and legal theorists to the uncertainties of globalization, the fading out of the public/private distinction, and the deterritorialization of law all have one thing in common: they all suffer, or can be seen to suffer, from a democratic decit. Whether rules are made in networks of central bankers or by courts at the centre of legal pluralism; whether they emanate from a sports governing body or follow from the outcries subsequent to scandalous events; Unity in the Fragmentation of Global Law’, 25 Michigan Journal of International Law (2004) 999-1046 at 1012-1013. 54 See Andreas Fischer-Lescano & Gunther Teubner, ‘Reply to Andreas L. Paulus: Consensus as Fiction of Global Law’, 25 Michigan Journal of International Law (2004) 1059-1073 at 1070. 55 See William Twining, Globalisation and Legal Theory (Butterworths: London, 2000). 56 See Brian Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press: Oxford, 2001) at 167. 57 See Boaventura de Sousa Santos, Toward a New Legal Common Sense (2nd edn, Butterworths: London, 2002).

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whether one follows legal activism or rather looks for normative ripples, there is no guarantee that the law thus identied has been made in accordance with democratic procedure. If anything, the reverse holds true: it seems fairly blatant that fairly little law is actually made in accordance with democratic procedure. Much law, instead, stems solely from the instrumental concerns of those who enact it: it is the expertise of experts, rather than democratic opinion, which makes law: at best, the law can be corrected by public opinion following scandals (in Teubner’s and Fischer-Lescano’s conception). This is worrying, both intrinsically and in systemic terms. It is worrying intrinsically in that democracy developed precisely out of a concern for the position of individuals and social groups, and precisely with a view to prevent oppression from taking place. John Dewey surely was correct when he sketched an organic development of democracy not so much as an idea, but as a practice, developing in piecemeal fashion in response to incidents, accidents and power struggles.58 If there is some truth in the proposition, often heard, that the democratic pedigree of a norm enhances the compliance pull of norms, then surely international law is bound for trouble. But there is also a systemic concern. While many international lawyers may long have discarded Prosper Weil’s ideal of the ‘simplifying rigor’ of law, a law that does not have some broad democratic support will stop commanding respect sooner or later. The rst signs are already visible: NATO’s decision to act over Kosovo, however morally justied or however ‘legitimate’, had a hard time nding a legal justication, both under the UN Charter and under NATO’s own constituent treaty; the US invasions of Afghanistan and Iraq (the latter oddly enough in the name of democracy) can either be taken as stretching the legal framework, or as simply bypassing it; calls in the literature that the binding nature of treaties depends on whatever level of commitment the parties see t to agree upon:59 they all suggest that the law is not taken very seriously and, instead, becomes a policy option among policy options, useful as long as certain values are espoused, not to be used in other circumstances. The countermove speaking of constitutionalism suffers, ironically perhaps, from the same drawback: it places some values over others, without explaining why this should be so or even trying to come to terms with conicts between those higher values themselves,60 and without realizing that thinking in terms of values can itself be highly instrumental (in that people have been known to change their ‘values’ overnight) and give rise to instrumentalism: the end justies the means. 58

See Dewey, The Public, supra note 27, at 83-87. See Joel E. Trachtman, ‘Bananas, Direct Effect and Compliance’, 10 European Journal of International Law (1999) 655-678. 60 See Erika de Wet, ‘The International Constitutional Order’, 55 International and Comparative Law Quarterly (2006) 51-76. 59

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By Way of Conclusion Soft law, in the end, is but one emanation of a broader trend: it is the handmaiden of the increasing deformalization of global politics, and ts neatly with the disappearance of the public/private distinction. Formal treaties may still be the instrument of choice for the exercise of public authority on the international level, but much regulation takes place through informal channels, by informal means, and in informal instruments which are not treaties but are still supposed to engender normative effects or can be seen to engender normative effects. Indeed, in a world where the distinction between public and private is no longer clearly demarcated, public and private authority too run into each other; as a result, it may well be that hard law emanating from public authority will become the exception rather than the norm. Perhaps, in such a world, soft law is the most plausible form that law can take, precisely because it remains unclear who exercises authority, and on what basis. One possible response to this fundamental uncertainty is to insist on the development of global administrative law,61 but this is unlikely to be adequate on its own, for at least three reasons. First, power-holders may escape scrutiny (as they have done for some decades) by suggesting that the instruments they create are not intended as legal instruments and thus not subject to judicial review.62 Second, review is almost by denition ex post facto, and at best a surrogate for transparent and participatory decision-making. And third, even formal compliance with decision-making procedures may be substantively empty, in much the same way in which procedural guarantees about the quality of doctoral dissertations may be manipulated by carefully selecting reviewers. This latter point is, arguably, of vital importance: what matters is not only the existence of formal procedures and categories, but also the individual attitudes of the persons stafng institutions, whether public or private.63 The one remaining defence that can be enlisted against the dilution of law and the spectre of global governance without accountability is a constitutionalist mindset. This has been recognized in the literature, and takes various forms. Some speak of ‘constitutionalism lite’;64 others 61

See supra note 8. Typically, review is limited to scrutinizing legal instruments or instruments intended to have legal effect, and must be so limited in order to remain workable. See Jan Klabbers, ‘Straddling Law and Politics: Judicial Review in International Law’, in R.St.J. MacDonald & D.M. Johnston (eds), Towards World Constitutionalism (Martinus Nijhoff: Leiden, 2005) 809-835. 63 Perez suggests, furthermore, that institutions may also be given anthropomorphic characteristics such as creativity. See Oren Perez, ‘Normative Creativity and Global Legal Pluralism: Reections on the Democratic Critique of Transnational Law’, 10 Indiana Journal of Global Legal Studies (2003) 25-64. 64 See Jan Klabbers, ‘Constitutionalism Lite’, 1 International Organizations Law Review (2004) 31-58. 62

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speak of a culture of formalism,65 and Lon Fuller, classically, invoked what he referred to as ‘procedural natural law’ in order to do justice to the internal morality of law and therewith also do justice to the idea that law as such is something to be cherished.66 The rule of law is, in the end, also the rule of man; but so is the rule of non-law. Hence, much depends on whether those who exercise any form of authority, public or private, will use their authority wisely and in moderation. Observant pedestrians in Helsinki may have noted that sometimes, when a building is under renovation, a handwritten sign close to the building instructs motorists not to park their cars near by: ‘parking prohibited’, it often says on a torn piece of cardboard. The formal status of that injunction is unclear: its form suggests it does not emanate from municipal authorities, but rather from one of the building’s occupants, or from the building’s caretaker, or even from the renovation crew. But always the nagging question remains: what if it is merely a ploy by a resident, aiming to secure a private parking spot?

65

See Martti Koskenniemi, The Gentle Civilizer of Nations (Cambridge University Press: Cambridge, 2002). 66 See Lon L. Fuller, The Morality of Law (rev. edn, Yale University Press: New Haven CT, 1969).

US Neoconservatism and the Rule of Radical Occasionalism — Carl Schmitt’s War on Terror? James O’Connor

[A]ll political concepts, images, and terms have a polemical meaning … Just as the term enemy, the word combat, too, is to be understood in its original existential sense. It does not mean competition, nor does it mean pure intellectual controversy nor symbolic wrestlings in which, after all, every human being is somehow always involved, for it is a fact that the entire life of a human being is a struggle and every human being symbolically a combatant … War follows from enmity. War is the existential negation of the enemy. Carl Schmitt, 19271 The United States is now engaged in a global war on terrorism … the terror war is part of a recurring theme of modern history: a fundamental conict between freedom and tyranny. Michael Ledeen, 20052

*

Doctoral Candidate (International Relations), Centre of Excellence in Global Governance Research, P.O. Box 4, Yliopistonkatu 3, 00014 University of Helsinki, Finland. This article is based on a Master’s thesis submitted to the Department of Political Science, University of Helsinki, in March 2006. The author would like to thank the two reviewers for the Finnish Yearbook for suggested clarications of the text, and Professor Heikki Patomäki and Riikka Kuusisto for detailed comments on earlier versions of the arguments presented here. 1 Carl Schmitt, The Concept of the Political (rst published 1927) (translated and with an introduction by George Schwab, University of Chicago Press: Chicago and London, 1996) at 30, 33. 2

Michael A. Ledeen, ‘The Advance of Freedom’, 27 Harvard International Review (Spring 2005) 14-17 at 15. Ledeen was a key advisor to the rst George W. Bush administration on terrorism and international affairs. See Thomas B. Edsall and Dana Milbank, ‘White House’s Roving Eye for Politics’, The Washington Post, March 10, 2003, A01.

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This article is a discussion of the type of argumentational approach developed in two cases where law is seen as not only secondary to politics but also a threat to it. The quotes above introduce the two cases in question; the outlook and expositional style of Carl Schmitt and of the political and legal commentators who can collectively be classed as neoconservative in relation to US foreign policy. In the latter case, the specic focus is on the US ‘war on terror’ as it has evolved under the impetus of the terrorist attacks of 11 September 2001 (hereafter ‘9/11’). The central theme of the paper is the characteristic I nd common to Schmitt and neoconservatism, namely what I will call radical occasionalism. My usage of this term can be most clearly dened after rst outlining the context and extent of my discussion of Schmitt. The subsequent analysis of the ‘war on terror’ is based on this and on my own denition of occasionalism, and so neoconservatism will be introduced only after those. The enormous literature on Schmitt from both legal and political elds of scholarship casts doubt on Jürgen Habermas’ prediction in 1986 that posthumously Schmitt would not gain great ‘power of contagion in the Anglo-Saxon world’.3 In the period roughly coinciding with that of the Weimar Republic (1918-1933), Schmitt developed the arguments and manner of presentation that characterized his ‘decisionist phase’.4 My focus is mainly on these writings. Decision, Schmitt claimed, put confrontation and the demand for certainty at the heart of politics: ‘The essence of liberalism is negotiation, a cautious half measure, in the hope that the denitive dispute, the decisive bloody battle, can be transformed into a parliamentary debate and permit the decision to be suspended forever in an everlasting discussion’.5 But even at his apparently most resolute and categorical, Schmitt’s writings suggest a strong inclination ‘to see which way the wind was blowing before leaping’.6 His only consistent decision, it seems, was to foster vagueness as the most effective political response to

3

Jürgen Habermas, The New Conservatism: Cultural Criticism and the Historian’s Debate (edited and translated by Sherry Weber Nicholsen, MIT Press: Cambridge, MA, 1989) at 135. For reviews of writings on Schmitt in English see Chris Thornhill, ‘Carl Schmitt after the Deluge’, History of European Ideas 26 (2000) 225-264, and Peter C. Caldwell, ‘Controversies over Carl Schmitt: A Review of Recent Literature’, 77 The Journal of Modern History (June 2005) 357-387. 4

Mika Ojakangas, A Philosophy of Concrete Life: Carl Schmitt and the Political Thought of Late Modernity (Kopijyvä Oy: Jyväskylä, 2004) at 115. 5 Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (rst published 1922) (translated and with an introduction by George Schwab, MIT Press: Cambridge, MA, and London, 1985) at 63. 6

Peter M.R. Stirk, ‘Carl Schmitt’s Enemy and the Rhetoric of Anti-Interventionism’, 8 The European Legacy (2003) 21-36 at 22. See also John H. Herz, ‘Looking at Carl Schmitt from the Vantage Point of the 1990s’, 19 Interpretation (Spring 1992) 307-314 at 308; Caldwell, ‘Controversies Over Carl Schmitt’, supra note 3, at 358-9; and Martti Koskenniemi, ‘International Law as Political Theology: How to Read Nomos der Erde?’, 11 Constellations (2004) 492-511 at 500-501.

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the constraints of ‘ordinary legal prescription’.7 Currently there exists the view that ‘the acuity of Schmitt’s thought lies in his ability to avoid universals and abstractions, which have no reference to a concrete instance’.8 As I will try to show, this is a deeply mistaken claim. Far from having resisted the ‘blurring of frontiers’ as Chantal Mouffe suggests,9 Schmitt’s decisionist arguments show ‘a genuine obsession with the arcane and the aphoristic’,10 and little of the concrete and ‘inherently objective nature’11 of the political sensibility he claimed to defend. As Habermas remarks, rather than illuminating the true nature of ‘the political’, ‘the answer Schmitt offered reads more like an answer to the nature of the strategic’.12 If there is indeed ‘an inbuilt conceptual reservation’13 to be found beneath the evasiveness of Schmitt’s writings, it may be little more than a self-interested, certainly ‘cunning’14 but hardly ‘daringly original’15 concern with being able to adapt his arguments to best capitalize on political contingencies.16 Focusing on this conceptual exibility and its implications for attempts to impose some degree of restraint on political strategy, the present article will relate Schmitt to the current ‘war on terror’ and specically to neoconservative legal and political arguments for greater freedom of manoeuvre of the US executive. My chosen perspective builds on what Schmitt’s contemporary, philosopher Karl Löwith called ‘occasional decisionism’.17 7

Schmitt, Political Theology, supra note 5, at 6.

8

Ojakangas, Concrete Life, supra note 4, at 10.

9

Chantal Mouffe, ‘Introduction: Schmitt’s Challenge’, in Mouffe (ed.) The Challenge of Carl Schmitt (Verso: London and New York, 1999) 1-6 at 1. 10 David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Herrmann Heller in Weimar (Oxford University Press: Oxford and New York, 1997) at 41. 11

Schmitt, The Concept of the Political, supra note 1, at 27.

12

Habermas, The New Conservatism, supra note 3, at 128.

13

Stirk, ‘Carl Schmitt’s Enemy’, supra note 6, at 22.

14

John P. McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (Cambridge University Press: Cambridge, 1997) at 15. 15

Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Politics of Max Weber, Carl Schmitt and Franz Neumann (Oxford University Press: Oxford and New York, 2003) at 161-162.

16 ‘Carl Schmitt wasted no time before enthusiastically endorsing the National Socialist seizure of power in Germany’: William Scheuerman, Carl Schmitt: The End of Law (Rowman & Littleeld: Lanham, 1999) at 15 (footnote omitted, citing two of Schmitt’s ‘ringing endorsements’ of the National Socialist Enabling Act of 23 March, 1933. For a detailed critique of Schmitt and ‘the jurisprudence of lawlessness’ see ibid., 1-173). 17 Karl Löwith, ‘The Occasional Decisionism of Carl Schmitt’, in Löwith, Martin Heidegger and European Nihilism (edited by Richard Wolin and translated by Gary Steiner) (Columbia University Press: New York, 1995) 137-169. In a translator’s note, Steiner remarks that the German Okkasionell means ‘occasional’ in the sense of causing something; the more common meaning in English, ‘from time to time’, does not apply here. See ibid., at 141.

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In Political Romanticism, Schmitt had argued that liberalism was guided by nothing more enduring than the impulse of the moment; action is reduced to a series of responses to trivial occasio, that is, ‘without substance, essence, and function … The problem of the true cause is the initial problem of occasionalism’.18 Occasionalism negates ‘every commitment to a norm … This is a destructive concept, since everything that confers consistency and order on life and events … is incompatible with the notion of the merely occasional’.19 Löwith’s forceful critique, however, turned this allegation of normative groundlessness and opportunism against Schmitt’s own arguments, nding his political decisionism empty and inherently nihilistic: Schmitt’s antiromantic, atheological decisionism is simply in keeping with his conduct, which in each case has been dictated by opportunity and circumstance … [his] decision in favour of the political is not a decision in favour of a denite and authoritative subject area, as it is in religious, metaphysical, moral, or spiritual decisions generally; rather, it is nothing other than a decision in favour of decisiveness — regardless of what this is actually in favour of … Hence it will remain to be asked: by faith in what is Schmitt’s “demanding, moral decision” sustained, if he clearly has faith … only in the power of decision?20

Schmitt’s faith seemingly lay in the inviolable and unlimited prerogative of the most powerful.21 As Dyzenhaus remarks, whereas Hans Kelsen’s pure theory of law advanced in his 1911 Hauptprobleme der Staatsrechtslehre ‘expresses the idea of an ethics of responsibility that somehow oats free from any substantive political claims’, Schmitt, equally unrealistically, argues ‘for an ethic of pure conviction and executive will, unconstrained by any rules’.22 18

Political Romanticism (rst published 1919) (translated by Guy Oakes, The MIT Press: Cambridge, MA, 1986) at 84-5. On the ‘occasionalist structure of romanticism’, see 78-108. 19

Ibid., at 17.

20

Löwith, ‘Occasional Decisionism’, supra note 17, at 138, 146, 141. (Emphasis in the original). The ‘demanding, moral decision’ is a reference to the discussion of dictatorship and Hegelian dialectics in Schmitt’s Die Geistesgeschichtliche Lage der heutigen Parlamentarismus, translated as The Crisis of Parliamentary Democracy, (rst published 1923) (translated by Ellen Kennedy, MIT Press: Cambridge, MA, and London, 1985) at 56. (All further references are to this translation). Kennedy’s translation is disputed; Lilla remarks that the original German title, Die geistesgeschichtliche Lage des heutigen Parliamentarismus, is ‘virtually untranslateable [sic] in English’. Mark Lilla, The Reckless Mind: Intellectuals in Politics (New York Review Books: New York, 2001) at 60, note 8. Perhaps more adequate is Gary Steiner’s translation, ‘The Place of Contemporary Parliamentarism in Intellectual History’. See translator’s note in Löwith, ‘Occasional Decisionism’, supra note 17, at 141. 21

Schmitt was not alone; this ‘pathos of decision in favour of bare decisiveness’ had met with wide approval, according to Löwith, in the years between the world wars. Löwith, ibid., at 159. 22

Dyzenhaus, Legality and Legitimacy, supra note 10, at 14.

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My argument in this paper is founded on the following denition, which is an extension both of Löwith’s critique and of Schmitt’s own view of occasionalism. Occasionalism as I use the term describes the paradoxical logic by which arbitrary and opportunistic behaviour is justied through appeal to ideals. Their invocation is intended to give the ‘occasionalist’ a free hand in acting with complete discretion, because the relevant ideals — sovereignty, freedom, democracy, the collective will or essential character of the nation, and suchlike — are perceived purely as instruments for self-empowerment. Whatever forms and degrees of constraint and reciprocity their observance in good faith might also presuppose are entirely excluded from the occasionalist interpretation. In other words, in approaching every contingency as an occasion for maximizing one’s own freedom of manoeuvre above all other considerations, occasionalist logic lays claim to ideals in a one-sided and self-serving manner. As will be seen, use of this strategy carries a high price in many ways, including in terms of one’s own credibility and capacity for cooperation. I argue that this sovereign occasionalism is reected in the neoconservative advocacy of a US-led ‘war on terror’. Despite apparent disparities such as neoconservatives’ strident moralism in contrast to Schmitt’s apparent denial of it,23 more signicant is their shared concern in stiing the challenges posed by international legal and other norms (such as diplomacy) to free-oating political discretion and the ultimately nihilistic24 ‘rule’ of contingency. Since 9/11, ideas ‘inextricably linked with Schmitt’s name — the legal exception, the unregulated sovereign decision, the mortal conict between friends and enemies that denes ‘the political’ — are all heavily back in play’.25 Surprisingly, despite ‘the breadth and heat’ of debate on US foreign policy since 9/11, international relations scholarship has paid relatively little attention to neoconservatism.26 A brief introduction is necessary here. Irving Kristol, one of the major gures in the movement, summarized ‘the neoconservative persuasion’ in US foreign policy as follows.27 First, ‘patriotism is 23

For the perhaps denitive argument against Schmitt’s attempted separation of ‘the moral’ from politics see Leo Strauss, ‘Notes on Carl Schmitt, The Concept of the Political’, in Schmitt, The Concept of the Political, supra note 1, 82-107, esp. 101, 104-105.

24

Löwith, ‘Occasional Decisionism’, supra note 17, at 146. Also of the view that for all his emphasis on political order Schmitt is paradoxically but undoubtedly nihilist is Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Post-War European Thought (Yale University Press: New Haven and London, 2003) esp. at 40. 25

Andrew Norris, ‘A Mine that Explodes Silently: Carl Schmitt in Weimar and After’, 33 Political Theory 33 (December 2005) 887-898 at 888.

26

Michael C. Williams, ‘What is the National Interest? The Neoconservative Challenge in IR Theory’, 11 European Journal of International Relations (2005) 307-337 at 308. Williams’ own article is perhaps the most notable exception to this generalization. 27

‘The Neoconservative Persuasion: What it Was, and What it Is’, 8 The Weekly Standard (August 25, 2003), reprinted in Irwin Stelzer (ed.) Neoconservatism (Atlantic Books: London, 2004) 33-37 at 36. (All subsequent references are to this latter source).

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a natural and healthy sentiment, and should be encouraged by both private and public institutions’.28 Second, world government ‘is a terrible idea, since it can lead to world tyranny’.29 Third, ‘statesmen should, above all, have the ability to distinguish friends from enemies’.30 Finally, ‘for a great power, the “national interest” is not a geographical term, except for fairly prosaic matters such as trade and environmental regulation … large nations … like the Soviet Union of yesteryear and the United States of today, inevitably have ideological interests in addition to more material concerns’.31 My argument is that a central characteristic of the ‘war on terror’ is the United States’ Schmitt-like assertion of the view that political contingency and an almost singlemindedly combative interpretation of strategic considerations must take precedence over legality and reciprocity within the practice of international relations, because these are seen as excessively inhibiting factors. Löwith suggests that the outcome of a worldview such as Schmitt’s is that, because it is merely reactive and aimlessly contingent, it is so dependent on opposition as to be devoid of any self-standing beliefs: ‘Schmitt’s remarks are essentially “polemical”, i.e., in the process of clarifying his opinions it is not merely from time to time that he directs his remarks critically against this and that, but instead the “correctness” which is proper to these remarks is based wholly on that against which they are directed’.32 Approaching neoconservatism by rst discussing Schmitt sets the context for a better understanding of the broad implications of what I see as the post-9/11 version of radical occasionalist strategy for attempts to regulate and moderate global political conduct. My overall point is that the problem of occasionalism presents a fundamental challenge to international political and legal practice when applied as vigorously as it has been since 9/11 by the United States and advocates of the ‘war on terror’.33 Besides 28

Ibid., at 36.

29

Ibid., at 36.

30

Ibid., at 36.

31

Ibid., at 36. For reasons of space I will not address the historical development of neoconservatism or its domestic role and inuence. On the former, Stefan Halper and Jonathan Clarke, America Alone: The Neoconservatives and the Global Order (Oxford University Press: Oxford, 2004) and Gary Dorrien, Imperial Designs: Neoconservatism and the New Pax Americana (Routledge: New York, 2004) give good, up-to-date introductions. A brief account of neoconservatism’s development during the Cold War is John Ehrman’s The Rise of Neoconservatism: Intellectuals and Foreign Affairs 1945^1994 (Yale University Press: New Haven, 1995). On neoconservatism’s US domestic role, see Peter Steinfels, The Neoconservatives: The Men who are Changing America’s Politics (Simon & Schuster: New York, 1979). A more recent, and sympathetic, domestic perspective is provided by Murray Friedman, The Neoconservative Revolution: Jewish Intellectuals and the Shaping of Public Policy (Cambridge University Press: New York, 2005). 32 33

Löwith, ‘Occasional Decisionism’, supra note 17, at 138.

For two highly critical accounts of the effects of neoconservatism on US foreign policy since 9/11, see G. John Ikenberry, ‘The End of the Neo-Conservative Moment’, 46 Survival 46 (2004) 7-22, and Stefan

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the intrinsic interest of establishing conceptual links34 between neoconservatism and Schmitt, I hope to indirectly shed light on the general characteristics and commonalities of these occasionalist modes of argument, since they are very likely to be present in other contexts as well.

Schmitt’s Radical Occasionalist Theories ‘All law is situational law … There exists no law that is applicable to chaos. For a legal order to make sense, a normal situation must exist, and he is sovereign who denitely decides whether this normal situation actually exists’.35 This dual statement on the nature of the exception and sovereignty is Schmitt’s most famed in a long pattern of surprisingly malleable concepts dressed in the declaratory tone of denitions. Here, ‘the exception’, the ‘normal situation’ and whether or not it exists, and by what criteria the sovereign ‘denitely decides’, are all set forth as if they were self-evident categories. But as Schmitt himself remarked elsewhere: ‘Words such as state, republic, society, class, as well as sovereignty, constitutional state, absolutism, dictatorship … and so on, are incomprehensible if one does not know exactly who is affected, combated, refuted, or negated by such a term’.36 A few years after developing his ideas on the state of exception and domestic sovereignty, in commenting on the United States’ claim of a right of intervention against a defeated Germany, Schmitt effectively expanded the two related concepts from the domestic to the international plane: the US assertion demonstrated ‘the sovereignty of the state which, by intervening, decides whether the conditions justifying the exceptional intervention are present’.37 Schmitt’s arguments often rely on his idiosyncratic form of existentialism. Warnock’s generalization — ‘the common interest which unites Existentialist philosophers is the interest in human freedom’38 — would certainly seem to rule out Schmitt, for whom Halper and Jonathan Clarke, America Alone, supra note 31. 34

I am arguing for similar patterns of argument, not for a ‘hidden dialogue’ between the two parties; critical of this latter, quite frequent approach in Schmitt scholarship is Joseph Bendersky, ‘New Evidence, Old Contradictions: Carl Schmitt and the Jewish Question’, 132 Telos (Fall 2005) 64-82 at 67-68. 35 Schmitt, Political Theology, supra note 5 , at 13; see also 5-15 in general, and Schmitt’s preceding work, Die Diktatur: Von den Anfängen des modernen Suveränitätsgedankens bis zum proletarischen Klassenkampf , Fourth Edition, (rst published 1921, revised 1928) (Duncker & Humblot: Berlin, 1989) at xvi, 137. 36

Schmitt, The Concept of the Political, supra note 1, at 30-31.

37

Carl Schmitt, ‘Die Kernfrage des Völkerbundes’ (1926), in Carl Schmitt, Positionen und Begriffe in Kampf mit Weimar-Genf-Versailles 1923-1939 (Hanseatisch Verlagsanstalt: Hamburg, 1940) at 774 (Translation mine). 38

Mary Warnock, Existentialism (Oxford University Press: London, 1970) at 1.

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modernity’s greatest aws were the belief in a ‘clear and simple upward line of human progress’39 and the attribution of ultimate authority to the individual at the expense of collective unity: ‘In the liberal, bourgeois world, the individuated, isolated, and emancipated individual becomes the nal court of appeal, the absolute’.40 In what way is he existentialist at all, then? Heller remarks that in common with Lukács and Heidegger, Schmitt embraced the Danish theologian Søren Kierkegaard’s ‘paradox of the existential choice’.41 Unlike Kierkegaard, however, they attribute that choice not to the individual but to homogenized groups, which in accordance with Schmitt’s oppositional ‘concept of the political’ meant the formation of ‘ghting collectives’ [kämpfende Gesamtheit von Menschen].42 The resulting collective or ‘communitarian existentialism’43 is a contradiction in terms: ‘The self-choice of a collectivity, if possible at all, cannot be existential. The collective identity is not an “exister”, to use Kierkegaard’s term, and thus it cannot choose its existence ... A collective existential choice could not make persons, real individuals, free’.44 Schmitt’s demand for homogeneity at the domestic level but rejection of it internationally45 suggests a selective adherence to Kierkegaard’s discussion of the relation of exceptions to universal norms. Löwith argues that Kierkegaard did not at all reject universals, and unlike Schmitt held that any exception to a norm must always be ‘reconciled with the universal’, whereas Schmitt ‘conversely poses the exception against the universal’.46 Although espousing pluralism of a sort, Schmitt had in mind no cosmopolitan idyll: ‘The political entity presupposes the real existence of an enemy and therefore coexistence with another political entity … The political world is a pluriverse, not a universe’.47 This world exists between the poles of Schmitt’s famous 39

Schmitt, The Concept of The Political, supra note 1, at 73.

40

Schmitt, Political Romanticism, supra note 18, at 99. See also ibid., at 20.

41

Agnes Heller, ‘The Concept of the Political Revisited’, in David Held (ed.) Political Theory Today (Stanford University Press: Stanford, 1991) 330-343 at 333. 42

Carl Schmitt, Der Begriff des Politischen. Text von 1932 mit einem Vorwort und drei Corollarien (Duncker & Humblot: Berlin, 1962) at 29.

43 This is Dyzenhaus’ description of Schmitt’s substantive position, which ‘must be utterly rejected’ due to what he sees as its tyrannical implications. Dyzenhaus, Legality and Legitimacy, supra note 10, at 2, xi. 44

Heller, ‘The Concept of the Political Revisited’, supra note 41, at 334-335.

45

See Schmitt’s 1952 essay ‘Die Einheit Der Welt’, in Carl Schmitt, Staat, Grossraum, Nomos: Arbeiten aus den Jahren 1916—1969 (Duncker & Humblot: Berlin, 1995) 496-512. 46

Löwith, ‘Occasional Decisionism’, supra note 17, at 142. Less critical accounts of Kierkegaard’s intellectual inuence on Schmitt are given by Ojakangas, Concrete Life, supra note 4, at 27; and Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Duke University Press Durham, NC, and London, 2004) at 47-48, and 205, note 49. 47

Schmitt, The Concept of the Political, supra note 1, at 53. As Ojakangas notes, Schmitt’s pluralism is not pluralism of individuals and cultures but of political entities; Ojakangas, Concrete Life, supra note 4, at 84, note 75.

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‘specic political distinction’ between friend and enemy.48 He expressed horror at the idea of a level of global integration which offered no outside (Ausland) but only a monolithic interior (Inland), ‘no space in which to freely measure and test one’s strength’.49 Conversely, his rejection of pluralism at the domestic level50 recalls his interpretation of democracy as a tautological principle of ‘equality among equals’: ‘democracy requires rst homogeneity and second — if the need arises — elimination or eradication of heterogeneity … Every actual democracy rests on the principle that not only are equals equal but unequals [sic] will not be treated equally’.51 In this, Schmitt’s ‘democratic’ community,52 there can be no acceptance of the Sartrean axiom that the individual is ‘condemned to freedom’.53 In his unconvincing and ‘apparently vehement’ rejection of universalism,54 Schmitt merely adopts a supercial rhetoric of combative pluralism that is shaped by his distinctively collectivist brand of existentialism. In this view, the only common ground that will ultimately inuence how opposing communal wills can settle their differences is the universality of human nature, which for Schmitt was in essence ‘dangerous and dynamic’.55 This collective existentialist paradox may partly explain the tension in much of Schmitt’s Weimar-era writings between his assertions of the autarchic nature of the sovereign decision, and his advocacy of the existential will of the volk: ‘if a people no longer possesses the energy or the will to maintain itself in the sphere of politics, the latter will not thereby vanish from the world. Only a weak people will disappear’.56 48

Schmitt, The Concept of the Political, supra note 1, at 26.

49

Schmitt, Glossarium: Aufzeichnungen der Jahre 1947 - 1951 (Gebundene Ausgabe) (edited by Eberhard Freiherr von Medem, Duncker & Humblot: Berlin, 1991) at 51 (Translation mine). 50

Schmitt, The Concept of the Political, supra note 1, at 53. For commentary see e.g. McCormick, Carl Schmitt’s Critique of Liberalism, supra note 14, at 257. 51

Carl Schmitt, The Crisis, supra note 20, at 9.

52

On the nihilism of Schmitt’s conception of democracy see Christoph Burchard, ‘Puzzles and Solutions: Appreciating Carl Schmitt’s Work on International Law as Answers to the Dilemma of his Weimar Political Theory’, XIV Finnish Yearbook of International Law (2003) 89-128 at 99-107. 53

Jean-Paul Sartre, ‘Eksistentialismikin on Humanismia’ [L ´Existentialisme est un humanisme, 1946], in Esseitä I (Finnish translation by Aarne T.K. Lahtinen and Jouko Tyyri, Otava: Helsinki, 1965) 7-58 at 19. 54

Koskenniemi, ‘International Law as Political Theology’, supra note 6, at 495. This view contradicts less interrogative readings, e.g. by Ojakangas, for whom Schmitt’s pluriverse was antithetical to the idea of universality as a whole – not only to the liberal version of it. Mika Ojakangas, ‘Sota poliittisena ehtona: Carl Schmittin pluriversum’, 3 Kosmopolis (1997) 5-16 at 7.

55

Schmitt denied that liberalism was a genuine political theory because of its benign view of human nature: ‘all genuine political theories presuppose man to be evil, i.e., by no means an unproblematic but a dangerous and dynamic being’. Schmitt, The Concept of the Political, supra note 1, at 61. 56

Ibid., at 53.

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Before moving on from Schmitt’s collective existentialism, I should point out that I do not mean to imply his arguments for the subjugation of individual to sovereigndictated group will were due entirely to philosophical confusion. Avoiding caricature requires bearing in mind a central dilemma of the time which undoubtedly left its impression on Schmitt’s work, one described well by his contemporary Paul F. Ward: ‘The State compounds men’s heterogeneous interests into an equilibrium internally and an effective homogeneity externally. But the diversication of interest is such that the group which can hold together without dangerous internal stresses is decreasing in size, while modern machinery is causing the territorial unit capable of effective political organization to increase in size’.57 As with so much of Schmitt’s writing, the opposition and ambiguity that characterize his state of exception demonstrate less interest in concepts than in ‘counterconcepts,’58 tautologies and negative denitions. In its exibility and scope for political advantageousness, the ‘borderline case’59 of the state of exception appears as a kind of ‘soft law’ for hard times: ‘The exception, which is not codied in the existing legal order, can at best be characterized as a state of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law’.60 Far from having ‘an especially decisive meaning which exposes the core of the matter’,61 Schmitt’s exception exposes only the nihilism of the view that the truly powerful actor is the one that refuses to accept constraints of any kind.62 Because of the centrality of the supposedly uncategorizable exceptional situation to Schmitt’s argument for political authority, it is no surprise he sees it as not merely an emergency measure but as ‘a general concept in the theory of the state’.63 Characteristically avoiding the nuisance of specics, he calls it the imposition of the ‘unlimited authority’ of the state: ‘the state remains, whereas law recedes. Because the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind’.64 The state and law, then, for Schmitt are separable, although the state 57 Paul F. Ward, Sovereignty: A Study of a Contemporary Political Notion (George Routledge and Sons, Ltd: London, 1928) at 189-190. 58

Löwith, ‘Occasional Decisionism’, supra note 17, at 137; Ojakangas, Concrete Life, supra note 4, at 24.

59

Schmitt, Political Theology, supra note 5, at 6.

60

Schmitt, The Concept of the Political, supra note 1, at 6.

61

Ibid., at 35.

62

Schmitt, Political Theology, supra note 5, at 37. His determination of the limits of law rests on the tautological assertion that ‘norms are only valid in normal situations’; Carl Schmitt, Legalität und Legitimität, Fourth Edition (rst published 1932) (Duncker & Humblot: Berlin, 1988) at 71-72. 63 64

Schmitt, Political Theology, supra note 5, at 5.

Ibid., at 12. For the view that Schmitt’s state of exception is merely a theoretical dressing for the advocacy of arbitrary rule, see Giorgio Agamben, State of Exception (translated by Kevin Attell, University of Chicago

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and order are not. That is, he sees no necessary correlation between order and law: ‘The emptiness [Inhaltslosigkeit] of trivial calculation of majorities deprives legality of any persuasive power; such neutrality is above all neutrality in the face of the distinction between justice and injustice’.65 This view is not unique to Schmitt — it is a key claim in the current debate on the US role in the world. Consider for instance the afnity of the above view with Rabkin’s question on the subject of the International Criminal Court, which the Bush administration strongly opposes: Should we worry about a system that may encourage people to think General Richard Myers (chairman of the U.S. Joint Chiefs of Staff during the [2003] Iraq war) is somehow the moral equivalent of [Saddam Hussein’s son] Uday Hussein? That is, in a way, the central point of the ICC — to prove that there is impartial justice, so liberators may be condemned along with tyrants.66

Similarly, Yale professor of law Michael Reisman reasons that because the United States is responsible for world order, it is justied in rejecting those parts of international law that obstruct it.67 Tuveson’s warning would however still be timely: ‘to assume that what is good for America is good for the world, that saving the United States is saving mankind, is to open up a large area of temptation’.68 This emancipation of political discretion from the connes of legal commitment has major relevance in the context of the neoconservative role in the ‘war on terror’, as I will later discuss in detail. In The Concept of the Political, Schmitt inadvertently highlights the aws of arguing through negative denitions. His discussion of ‘antitheses of the political’69 presents politics itself as a merely negative, even reactionary category.70 As such, it restates the view of his earlier Political Theology that the ideal exception-making sovereign is that hypothetical power which belongs outside of and above any external standards of judgement and commitment: ‘Sovereignty is the highest, legally independent, underived Press: Chicago and London, 2005) at 30. 65

Schmitt, Legalität und Legitimität, supra note 62, at 32 (Translation mine).

66

Jeremy A. Rabkin, The Case For Sovereignty: Why the World Should Welcome American Independence (AEI Books: Washington, DC, 2004) at 98. 67 W. Michael Reisman, ‘The United States and International Institutions’, 41 Survival (Winter 1999) 6280 at 75. 68

Ernest Lee Tuveson, Redeemer Nation: The Idea of America’s Millennial Role (University of Chicago Press: Chicago, 1968) at 132.

69 70

Schmitt, The Concept of the Political, supra note 1, at 23.

My overall perspective on Schmitt’s style, but in this section in particular, is inuenced by Albert O. Hirschman’s The Rhetoric of Reaction: Perversity, Futility, Jeopardy (Belknap Press, Harvard University Press: Cambridge, MA, and London, 1991), esp. his discussion of ‘the jeopardy thesis’, 81-132.

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power’.71 This is somewhere between a negative denition and a tautology. Sovereign is the power that is not constrained; ergo, rejecting constraints — which taken to the extreme, as in Schmitt’s state of exception, is surely a denition of nihilism — constitutes a claim to sovereignty: ‘The sovereign decision is an absolute beginning and the beginning is nothing else than a sovereign decision’.72 As an occasionalist tool, that is, a means of blurring the already hazardous area where necessity, pragmatism, arbitrariness, and different forms of obligation converge, negative denitions have a powerful political attraction. They are inherently noncommittal, usually violating what Kelley calls the ‘rule of essentiality’, — to be valid a denition must refer to fundamental attributes of the concept that cause or explain the existence of other, less fundamental characteristics.73 One can thus assert condemnation or rejection of something without thereby shackling oneself to any concretely expressed commitment; in contrast, positively articulated positions or attitudes communicate some form of acceptance, thereby limiting to some degree one’s future options. Paradoxically, the real outcome of Schmitt’s (and neoconservatives’) purely negative decisionism is that rather than taking concrete action, deciding on contingency alone means that the sovereign falls into the counter-productive trap of continually deferring decisions of greatest longterm consequence, namely those that would integrate him into a wider community of sovereigns. Any bearable form of political community is effectively ruled out through the ultimately antisocial and self-isolating nature of Schmitt’s friend/enemy worldview. Nevertheless, because Schmitt sees the sovereign as an autarch, endowed with absolute, non-negotiable political freedom, such a habitually unaccountable entity is effectively condemned to be an outcast. This observation is of no little relevance to the current position of the United States. Ironically, one aim of Schmitt’s decisionism seems to have been to rescue politics from politicians, whose nominal accountability to the masses74 Schmitt ridiculed by denouncing parliamentary politics as ‘the despised business of a rather dubious class of persons’.75 In defending the decision of the Bush administration to treat the 9/11 attacks as an act of war Ruth Wedgwood seems to suggest that, like Schmitt’s desired emancipation of politics from the grasp of its current practitioners, so too should law be rescued from lawyers: 71

Schmitt, Political Theology, supra note 5, at 17.

72

Schmitt, The Crisis, supra note 20, at 43. See also Schmitt, Political Theology, supra note 5, at 15.

73

David Kelley, The Art of Reasoning (Norton: New York and London, 1988) at 39-41.

74

In articulating contemporary concerns about the potentially destabilizing effects of extended enfranchisement and mass democracy, Schmitt ‘embodie[d] perfectly’ the displacement of the fears of the propertied classes ‘onto a positive concern with order and security.’ Michael Mann, Fascists (Cambridge University Press: Cambridge, 2004) at 75-76. 75

Schmitt, The Crisis, supra note 20, at 4.

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Should we think of the [al Qaida] network in criminal justice terms, as we have throughout the 1990’s, or in war and armed conict terms? Lawyers have a vested interest, some might suppose, in choosing criminal justice. But the law speaks as loudly in armed conict as it does in criminal justice. The scope of the damage caused on September 11th makes the language of war seem apropos, and this has some important consequences.76

What is ‘apropos’, in whose language, and with what consequences for other denominators it may conict with, is the concern I will now address more directly in relation to neoconservatism and the ‘war on terror’.

US Neoconservatism [A] kind of historical cunning must be ascribed to Neo-conservatism, for it was but the latest of a sequence, starting with Burke’s Reections [on the Revolution in France, 1791] of reactive relationships between conservatism and turmoil.77 American neoconservatives, who are among the most vigorous advocates of democracy promotion abroad, at the same time are also utterly disdainful of international public opinion. Their position entails an unsustainable contradiction.78

Neoconservatism became a distinctive political position from the 1960s onwards. However, the end of the Cold War forced neoconservatives to seek a new cause to replace the ght against communism.79 It is this post-Cold War incarnation of neoconservatism that has been dominant since the events of 9/11, although its current emphasis on a broadly dened ‘terror’ threat is not entirely new. From the end of the Cold War onwards, this began to be formulated as one of the main themes that would redene neoconservatism.80 To get to the issue of the neoconservative role in shaping 76

Ruth Wedgwood, ‘After September 11th’, 36 New England Law Review (2002) 725-733, at 727.

77

Robert Nisbet, Conservatism, (Open University Press: Milton Keynes, 1986) at 99-100.

78

John Gerard Ruggie, ‘American Exceptionalism, Exemptionalism, and Global Governance’, in Michael Ignatieff (ed.) American Exceptionalism and Human Rights (Princeton University Press: Princeton and Oxford, 2005) 305-338 at 337. 79

The end of the Cold War ‘deprived the United States of a mission; consolidation was never as attractive or as inspirational as regeneration’. David Ryan, US Foreign Policy in World History (Routledge: London, 2000) at 184. 80

See Halper and Clarke, America Alone, supra note 31, e.g. at 4, and the discussion of the leaked 1992

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the legal and political claims that most characterize the US ‘war on terror’, I will rst situate neoconservatism within its broader framework, the ‘doctrinal preferences’ and ‘specic ideological agenda’ of US exceptionalism.81 After then discussing how neoconservatism, as one important variant of this agenda, has inuenced debates on terrorism since 9/11, I will develop my argument for the continued relevance of Schmittian occasionalism in the present-day context. US exceptionalism can be traced to the Puritan colonists, who wrote of the uniqueness and moral superiority of ‘America’ from the early decades of the seventeenth century.82 Although US exceptionalism takes various and at times seemingly incongruous forms,83 what all strands of it rely on are the ‘myths of moral innocence’ Linenthal nds integral to the ‘American psyche’.84 As early as 1630, Massachusetts Bay Colony Governor John Winthrop had declared the mission to make the United States a moral beacon for the world, a ‘city upon a hill’.85 Neoconservatives however reject this inference of detachment: Because America has the capacity to contain or destroy many of the world’s monsters, most of which can be found without much searching, and because the responsibility for the peace and security of the international order rests so heavily on America’s shoulders, a policy of sitting atop a hill and leading by example becomes in practice a policy of cowardice and dishonor.86

This assertive exceptionalism received enormous impetus through 9/11. Now, after the 1990s ‘holiday from history’ inicted by Clinton,87 ‘moral clarity would be Defense Planning Guidance document written by Paul Wolfowitz and Lewis Libby, aides to then Defense Secretary Dick Cheney, at 145-146. See also Stanley Hoffmann, ‘American Exceptionalism: The New Version’, in Ignatieff (ed.), American Exceptionalism, supra note 78, 225-240, esp. 227-231. See also one of the denitive post-Cold War neoconservative texts, Charles Krauthammer’s ‘The Unipolar Moment’, 70 Foreign Affairs (1990/1991) 23-33. 81

Ruggie, ‘Exemptionalism’, supra note 78, at 307.

82

Siobhán McEvoy-Levy, American Exceptionalism and US Foreign Policy: Public Diplomacy at the End of the Cold War (Palgrave: New York, 2001) at 24.

83

See e.g. Michael Ignatieff, ‘Introduction: American Exceptionalism and Human Rights’, in Ignatieff (ed.), Exceptionalism and Human Rights, supra note 78, 1-26, at 3-11. 84

Edward T. Linenthal, ‘From Hero to Anti-Hero: The Transformation of the Warrior in Modern America’, in Peter H. Merkl and Ninian Smart (eds) Religion and Politics in the Modern World (New York University Press: New York, 1980) 232-248 at 243. 85

McEvoy-Levy, American Exceptionalism, supra note 82, at 24.

86

William Kristol and Robert Kagan, ‘Toward a Neo-Reaganite Foreign Policy’, 75 Foreign Affairs (July/ August 1996) 18-32 at 31. 87

Charles Krauthammer, ‘In Defense of Democratic Realism’, The National Interest, Fall 2004, reproduced

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an important quality of a successful American foreign policy’.88 Similarly, Norman Podhoretz considers the so-called ‘Bush Doctrine’ and its centrepiece, the 2000 National Security Strategy of the United States,89 to be founded on ‘a repudiation of moral relativism and an entirely unapologetic assertion of the need for and the possibility of moral judgement in the realm of world affairs’.90 What is of most relevance here is that the exceptionalism pervading US politics91 entails that issues related to international affairs be framed in a manner which precludes or circumvents any possible negotiated outcomes which would clash with the basic assumption of US supremacy.92 There is an argument to be made, therefore, that the United States now seeks its place in the world by using its sovereign power to declare itself outside or above the international order93 — in other words, it seems to have gone further than other states in asserting exceptionalism as a justication for the global pursuit of ‘double standards’.94 In this sense, Agamben’s treatment of the Schmittian exception as a kind of exclusion95 entails self-exclusion — the United States does not necessarily seek to obliterate rules it objects to, but instead to place itself outside of them while intending the bypassed constraint to remain in place to bind others. In Krisch’s view, this simultaneous exploitation of and ‘retreat from international law … enables the in Gary Rosen (ed.) The Right War? The Conservative Debate on Iraq (Cambridge University Press: New York, 2005) 186-200, at 186. (This and all subsequent references to this article are to the latter source). 88

William Kristol, ‘Postscript — June 2004. Neoconservatism Remains the Bedrock of U.S. Foreign Policy’, in Stelzer (ed.) Neoconservatism, supra note 27, at 75-76. 89

The National Security Strategy of the United States of America, available at <www.whitehouse.gov/nsc/nss. pdf> (visited 20 September 2006).

90 Norman Podhoretz, ‘World War IV: How it Started, What it Means, and Why We’ll Have to Win’, in Rosen (ed.), The Right War? supra note 87, 102-169 at 121. 91 See e.g. McEvoy-Levy, American Exceptionalism, supra note 82, at 23. A good list of literature on US exceptionalism and its legal and political implications is provided by Ignatieff, ‘Introduction’, supra note 83, at 2-3, note 2. 92

Galtung sees US foreign policy as a system founded on antitheses, such as order and disorder. Discussions are then framed so as to tacitly but powerfully constrain the possibility of negotiation: ‘With anarchy decried this option is rejected. In a hierarchy the strongest have to be on top … The rest almost becomes a tautology’. Johan Galtung, ‘U.S. Foreign Policy as Manifest Theology’, in Jonsuk Chay (ed.) Culture as Theology (Praeger: New York, 1990) 119-140 at 138. 93

For neoconservative endorsement of this very view see e.g. Irving Kristol, ‘The Neoconservative Persuasion’, supra note 27, at 36. On the self-exclusionary features of US exceptionalism, see Ruggie, ‘Exemptionalism’, supra note 78. 94 Harold Hongju Koh, ‘On American Exceptionalism’, 55 Standford Law Review (May 2003) 1479-1528, at 1485; Ignatieff, ‘Introduction’, supra note 83, at 7-8; Hoffman, ‘The New Version’, supra note 80, at 234. 95 See esp. Agamben, supra note 64, and also Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (rst published 1994) (translated by Daniel Heller-Roazen, Stanford University Press: Stanford, 1998).

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United States, in effect, to govern other states’.96 Ignatieff sees this ‘exemptionalism’ as a major variant of US exceptionalism.97 These critiques are consistent with the theme of occasionalism as I discuss it throughout this paper. Regardless of the theoretical label one prefers to apply, the point here is that this elevated self-perception has long characterized the US approach to international law.98 The aim, Krisch argues, is to keep the international legal system ‘in a primitive state — characterized mainly by indeterminate, primary rules, few and weak institutions for lawmaking and enforcement, and a strong fragmentation without a dening center’.99 Exceptionalism is in effect codied in the 2002 National Security Strategy of the United States. An important precedent to this can be found in the 1823 Monroe Doctrine, which had become US policy by 1860,100 over time becoming one of the most signicant of all US ofcial documents.101 Its expansiveness, and ‘malleability’, meant it had farreaching consequences.102 Through it, the US declared ‘its’ hemisphere closed to Old World powers: attempted intervention would be construed ‘as dangerous to our peace and safety’.103 Having thus proclaimed the entire Americas its sphere of inuence,104 the US had in effect placed itself at the top of a regional system of sovereign hierarchy. This supremacism, the ‘enduring essence of the Monroe Doctrine’,105 and its rhetoric of defence of values is central to the rationale of a ‘war on terror’, as the 2002 National Security Strategy shows.106 96

Nico Krisch, ‘More Equal than the Rest? Hierarchy, Equality and US Predominance in International Law’, in Michael Byers and Georg Nolte (eds.) United States Hegemony and the Foundations of International Law (Cambridge University Press: Cambridge, 2003) 135-175 at 136. 97

Ignatieff, ‘Introduction’, supra note 83, at 3-7. See also Ruggie, ‘Exemptionalism’, supra note 78.

98

See Nico Krisch, ‘Weak as Constraint, Strong as Tool: The Place of International Law in U.S. Foreign Policy’, in David M. Malone and Yuen Foong Khong (eds.) Unilateralism and U.S. Foreign Policy: International Perspectives (Lynne Rienner: Boulder and London, 2003) 41-70, esp. 45-53. 99

Ibid., at 53.

100

McEvoy-Levy, American Exceptionalism, supra note 82, at 24.

101

Ryan, US Foreign Policy, supra note 79, at 40. See also Gaddis Smith, The Last Years of the Monroe Doctrine 1945-1993 (Hill & Wang: New York, 1994) esp. 21-40. The main author of the Doctrine was John Quincy Adams, US Secretary of State throughout President James Monroe’s time in ofce (1817-1825). See ibid., at 28. 102

Ryan, US Foreign Policy, supra note 79, at 46.

103

The Monroe Doctrine (1823), available on the US Department of State website at (visited 20 September 2006). 104

Not only was the Monroe Doctrine limited to US dominance in the Americas: ‘In April 1941, acting explicitly with reference to the Monroe Doctrine, the United States placed Greenland under its protection in order to preclude its use by Germany’: Smith, The Last Years, supra note 101, at 38-39. 105

Ryan, US Foreign Policy, supra note 79, at 41.

106

National Security Strategy, supra note 89, esp. sections II, ‘Champion Aspirations for Human Dignity’, at

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The reactive US role decreed by the former document changed most radically with the advent of Wilsonianism, ‘the universal application of the Monroe Doctrine’.107 Realizing that US involvement in the Great War would mean a self-breach of the Monroe Doctrine’s own warning against foreign intervention,108 Wilson resolved this by reframing the Doctrine as a declaration of universal principles: I am proposing, as it were, that the nations should with one accord adopt the doctrine of President Monroe as the doctrine of the world: that no nation should seek to extend its polity over any other nation or people, but that every nation should be free to determine its own polity, its own way of development, unhindered, unafraid, the little along with the great and powerful.109

A precedent for current US practice regarding international law can thus be found in this universalistic rationalization for infringement of the same rules one has earlier insisted on. Although the rules in question are different and the historical contexts may be incommensurable, Wilson’s underlying occasionalism seems familiar in the ‘war on terror’. In response to the 9/11 attacks, Bush issued a Military Order on November 13, 2001.110 A tribunal operating under the Military Order will possess powers over the individual in question — not ‘defendant’, because there is no option of legal defence111— that make future possible actions taken under the Military Order, for instance the use of the death penalty provided for in it,112 incompatible with US obligations under the Geneva Convention.113 As perhaps the most prominent and controversial of the measures taken on the basis of 2001 Military Order, the detainment of individuals at Guantánamo military base in Cuba illustrates a number of ways in which the US ‘war on terror’ combines US exceptionalism with Schmittian ambiguity, preference for arbitrariness and prioritization of sovereign power. Detainees are held as ‘illegal combatants’ rather than as prisoners 3-5, and III, ‘Strengthen Alliances to Defeat Global Terrorism and Work to Prevent Attacks Against Us and Our Friends’, at 5-7. 107

Ryan, US Foreign Policy, supra note 79, at 52.

108

Smith, The Last Years, supra note 101, at 29.

109

Woodrow Wilson, ‘President Wilson’s Address of January 22, 1917’, 11 American Journal of International Law, ‘Supplement: Diplomatic Correspondence Between the United States and Belligerent Governments Relating to Neutral Rights and Commerce’ (October 1917) 318-323 at 323.

110 George W. Bush, ‘Military Order — Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism’, 37 Weekly Compilation of Presidential Documents (November 19, 2001) 1665-1668. 111

Ibid., section 1 (f), and section 7 (b) (1) and (2).

112

Ibid., section 4 (a).

113

Daryl A. Mundis, ‘The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts’, 96 American Journal of International Law (April 2002) 320-328 at 328.

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of war114 and declared outside the reach both of international law115 and of US domestic law.116 The Military Order denies any right of appeal or habeas corpus relief117 — in effect, extraterritoriality justies extralegality.118 How do the Military Order and the related exceptionalist arguments relate to the argument on radical occasionalism as I have developed it so far? These legal and political claims made in defense of a ‘war on terror’ and the actions which constitute it are strikingly similar in their overall approach to that of Schmitt. Beginning with a situation of genuine crisis — for Schmitt the Weimar situation and for the US the 9/11 terrorist attacks — efforts are made to present this as evidence of a far broader, systemic and even existential crisis. The initial, concrete threat now becomes only part of the target: what is needed are arguments and policies that allow for a far more comprehensive, effectively unregulated response, the global political equivalent of retaliating against not only the aggressor but the whole surrounding environment

114 White House Press Brieng by Ari Fleischer, February 7, 2002, available at <www.whitehouse.gov/ news/releases/2002/02/20020207-6.html> (visited 26 September 2006). See also e.g. David E. Sanger, ‘President Defends Military Tribunals in Terrorist Cases’, New York Times, November 30, 2001, at A1. For a defence of the US ofcial position, see John Yoo, ‘The Status of Soldiers and Terrorists under the Geneva Conventions’, 3 Chinese Journal of International Law 3 (2004) 135-150 at 136-137. 115

In January 2002 John Yoo of the US Department of Justice’s Ofce of Legal Counsel co-authored a 42-page memo concluding that neither the Geneva Conventions ‘nor any of the laws of war’ applied to US military actions in Afghanistan, from where detainees were soon transferred to Guantánamo. ‘The Roots of Torture’, Newsweek International Edition, May 24 2004, available at <www.msnbc.msn.com/id/4989481/> (visited 26 September 2006). Yoo’s position is shared by Ruth Wedgwood, ‘Al Qaeda, Terrorism, and Military Commissions’, 96 American Journal of International Law (April 2002) 328-227 at 330. Wedgwood advised the Pentagon on procedures for implementing the 2001 Military Order (supra note 110); see Ruth Wedgwood, ‘Red Cross Errs on Legalities of War on Terrorism’, The Financial Times, 4 March 2004, at A14. 116

Bush, ‘Military Order’, supra note 110, Section 1 (f). Richard Bourke, a lawyer for some of the detainees, considers Guantánamo’s role in the ‘war on terror’ as ‘an experiment in two things … In interrogation techniques, and in how far you could go before people began to object’. Isabelle Hilton, ‘Held in Contempt’, The Financial Times, 28/29 August 2004. 117

Bush, ‘Military Order’, supra note 110, section 7 (b) (2). The right of the accused to be tried in a court of law and to challenge the charges made against him or her is provided in Section 9, clause 2 of the US Constitution: ‘The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it’.

118

Kermit Roosevelt III, ‘Application of the Constitution to Guantanamo Bay. Guantanamo and the Conict of Laws: Rasul and Beyond’, 153 University of Pennsylvania Law Review (June 2005) 2017 – 2071 at 2017-2018. In Rasul the US Supreme Court ruled on 28 June 2004 that contrary to the 2001 Military Order (supra note 110), US federal courts have jurisdiction to consider legal challenges to the detention of non-US nationals at Guantánamo naval base. See also Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules (Penguin: London, 2005) esp. 143-173. For discussion of the Military Order see ‘Agora: Military Commissions’, 96 American Journal of International Law 96 (April 2002) 320†358.

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the victimized sovereign feels, or claims to feel, betrayed by. 119 A year after 9/11, for example, at the UN General Assembly, the target of US anger had seemingly evolved so that the burden of proving itself on the right side of Schmitt’s famous distinction between friend and enemy fell not on Saddam Hussein’s Iraq — now the absolute enemy — but on the UN itself: ‘All the world now faces a test, and the United Nations a difcult and dening moment. Are Security Council resolutions to be honored and enforced, or cast aside without consequence? Will the United Nations serve the purpose of its founding, or will it be irrelevant?’120 Having briey discussed some of the most notable policies and actions of the ‘war on terror’, what needs to be discussed further however is the fuller extent to which occasionalism as I have dened it explains the logic of neoconservative arguments in light of 9/11. I suggest that the denitive position taken by the US since then, that the ‘war on terror’ is a ‘different’121 or ‘new kind of war’,122 has been promoted by neoconservatives as the most effective means of expanding the powers of the US executive far beyond those necessary for a sufcient response to the 9/11 attacks. At the same time, clearing such a space for greater sovereign discretion entails incapacitating or at least signicantly limiting existing legal and other constraints. One such instance of this Schmittian approach has been mentioned already — the claim of ultimate sovereign authority for the US executive through Military Order and the subsequent designation of detainees in Guantánamo as ‘illegal combatants’. Here I take a further example, the abrupt end of the ‘conventional phase’123 of the war in Iraq with Bush’s proclamation of victory on 1 May 2003, although the vast 119 On this last point see e.g. Andrew Norris, ‘‘Us’ and ‘Them’: The Politics of American Self-Assertion After 9/11’, 35 Metaphilosophy (April 2004) 249-272, esp. 250-251. 120 George W. Bush, ‘Address to the United Nations General Assembly in New York City, September 12, 2002’, 38 Weekly Compilation of Presidential Documents 1529-1533 at 1532. 121

‘This will be a different kind of conict against a different kind of enemy. This is a conict without battleelds or beachheads, a conict with opponents who believe they are invisible’: George W. Bush, ‘The President’s Radio Address, September 15, 2001’, 37 Weekly Compilation of Presidential Documents 1321. 122 In a Jan. 22, 2002 memo to Bush headed ‘Decision Re Application of the Geneva Convention on Prisoners of War to the Conict with Al Qaeda and the Taleban’, White House legal counsel Alberto Gonzales wrote: ‘[t]he war against terrorism is a new kind of war … The nature of the war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians … In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions’, allowing Bush to ‘preserve exibility’ in responding to the 9/11 attacks. The text of the memo is available at <www.msnbc.msn.com/id/4999148/site/newsweek/> (visited 24 September 2006). 123

G. John David, ‘Facing a Future Without Front Lines’, 129 U.S. Naval Institute Proceedings (November 2003) 36-38 at 36.

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majority of deaths in Iraq have occurred since this.124 Rabkin typies the apparent triumphalism at the ‘end’ of the war in May 2003: ‘This “unilateral” resort to war provoked intense criticism at the United Nations and in national capitals around the world. As it turned out, Anglo-American forces were able to defeat Saddam’s armies and occupy all of Iraq in a three-week war that caused minimal casualties’.125 Similarly, Max Boot boasts in Foreign Affairs: ‘The United States and Britain took just 26 days to conquer Iraq (a country 80 percent of the size of France), at a cost of 161 dead, making fabled generals such as Erwin Rommel and Heinz Guderian seem positively incompetent by comparison’.126 Rather than, or as well as, mere arrogance, the ‘threeweek war’ rhetoric127 might be seen as a new development in how the rhetoric of exceptionalism and crisis — otherwise put, Schmittian occasionalism — is used with the aim of freeing the future actions of an already powerful state. By declaring the war over at such an early stage, all ensuing US actions could more easily be put beyond reach of the laws of war, such as the Geneva Conventions.128 The required ‘borderline’ space 129 had after all been prepared by the November, 2001 Military Order.130 After the ‘three-week war’, the US could therefore frame its subsequent actions in Iraq in terms of the normlessness required in the existential struggle against the normless ‘unlawful combatant’, or ‘essentialist terrorist’, to use Khan’s polemical phrase.131 Subsequent actions taken by the invading side now reected dire necessity: the 124

For Bush’s declaration of an end to ‘[m]ajor combat operations’ see George W. Bush, ‘Address to the Nation on Iraq from the U.S.S. Abraham Lincoln’, 39 Weekly Compilation of Presidential Documents 516-518 at 516. For an estimate of the death toll in Iraq as a result of the US-led invasion up until July 2006, see Gilbert Burnham, Riyadh Lafta, Shannon Doocy, and Les Roberts, ‘Mortality After the 2003 Invasion of Iraq: A Cross-Sectional Cluster Sample Survey’, 368 The Lancet (21 October 2006) 1421-1428. Also available at <www.thelancet.com/webles/images/journals/lancet/s0140673606694919.pdf> (visited 3 December 2006). 125

Rabkin, The Case for Sovereignty, supra note 66, at 1.

126

Max Boot, ‘The New American Way of War’, 84 Foreign Affairs (July/August 2003) 41-58 at 44.

127

See also Michael Ledeen, Margaret Thatcher, Robert L. Bartley, John Rutledge, Claudia Rosett, Brink Lindsey, and Jeanne J. Kirkpatrick, ‘After the Three-Week War: The United States and the World PostSaddam’, 36 The American Spectator (June/July 2003) 38-44; and Richard Perle, ‘Relax, Celebrate Victory’, USA Today, May 2, 2003, available at <www.aei.org/news/lter.all,newsID.17096/news_detail.asp> (visited 22 September 2006). 128

See e.g. Yoo, ‘Soldiers and Terrorists’, supra note 114, at 150: allowing the applicability of the Geneva Conventions to alleged terrorists ‘poses a threat to U.S. national security and undermines the very purpose and function of international humanitarian law’. 129

Schmitt, Political Theology, supra note 5, at 5, referring to the nature of the exception and the sovereign. 130

Bush, ‘Military Order’, supra note 110.

131

Liaquat Ali Khan, ‘The Essentialist Terrorist’, 45 Washburn Law Journal (Fall 2005) 47-88.

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US was no longer engaged in a war with a legitimate enemy, but in desperate attempts to put down an illegitimate ‘insurgency’.132 Considered in terms of Schmitt’s critique of legal positivism,133 it may seem that a sovereign state’s only escape from a legal system that aims to provide a rule to cover every eventuality is by the principle of ‘rupture’: denial of the system’s authority to judge it.134 Used loosely in terms of the US relationship with international law, it would seem to illustrate the dilemma faced by the former: it cannot afford to rupture itself entirely from the international legal system, since to do so would be to forfeit many of the benets it derives from it. Apart from the impracticalities of attempting to do so, even the most instrumentalist of political strategists would see that this would also incapacitate those international legal constraints of useful to the pursuit of US interests.135 Instead, its only option is to engineer an indeterminate space for conducting foreign relations without rm commitment.136 Because this strategy is heavily dependent on invocations of various degrees of threat, I will discuss this and the related rhetoric of protection in some detail below.

Radical Occasionalism as a Form of Universalistic Thinking What has been accentuated within neoconservatism, and within US foreign policy, since 9/11 is the long-established exceptionalist perception that the United States has 132

On the Iraq ‘insurgency’ see e.g. Steven Metz, ‘Insurgency and Counterinsurgency in Iraq’, 17 The Washington Quarterly (Winter 2003/2004) 25-36. On the international legal provisions governing insurgency, see Brad R. Roth, Governmental Illegitimacy in International Law (Clarendon Press: Oxford, 1999) 173-177. Cassese argues that changes made during the drafting of the 1977 Geneva Protocol Relating to the Protection of Victims of Non-International Armed Conicts (Protocol II) were ‘clearly motivated by the desire to reduce rebels to the level of criminals devoid of any international status’. Antonio Cassese, ‘The Status of Rebels Under the 1977 Geneva Protocol on Non-International Armed Conicts’, 30 International and Comparative Law Quarterly (April 1981) 416-439 at 421. 133

Particularly as formulated by Hans Kelsen, who in Schmitt’s estimation ‘solved the problem of sovereignty by negating it’: Schmitt, Political Theology, supra note 5, at 21. On Kelsen see ibid., at 18-22, 40-42. 134

Jacques Vergés, De la Strategie Judicaire, (Éditions de Minuit: Paris, 1968) at 86-87.

135

This is a point argued by Krisch, ‘Weak as Constraint’, supra note 98, esp. at 62-66.See also Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge University Press: Cambridge, 2004) esp. sections on ‘legalised hegemony’, e.g. 62-88, and sovereign inequality, e.g. 326-329. 136

Illustrative of this is the January 2002 memo by White House legal counsel Antonio Gonzales to Bush, advising that the argument that the Geneva Conventions do not apply to [alleged] Taleban and Al Qaeda ghters ‘preserves exibility’ in the US response to terrorism. See ‘Decision Re Application’, supra note 122.

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a duty and right137 to impose its preferred order on a world they see the US as being largely antithetical to.138 The ‘war on terror’ has given renewed impetus to militarist interpretations of this duty:139 the dream of a world at peace ‘will not come true soon, but if it ever does come true, it will be brought into being by American armed might and defended by American might, too’.140 As such, neoconservatism represents the most militant variety of the US exceptionalist self-perception.141 They generally see little prospect of settling differences through negotiation,142 echoing Schmitt’s warnings against internal ‘heterogeneity’ and its effects on internal political order.143 The crisis imposed by 9/11 leaves no room for reticence in this mission, as Boot asserts: In deploying American power, decisionmakers should be less apologetic, less hesitant, less humble. Yes, there is a danger of imperial overstretch and hubris – but there is an equal, if not greater, danger of undercommitment and lack of condence. America should not be afraid to ght ‘the savage wars of peace’ if necessary to enlarge ‘the empire of liberty’. It has done it before.144

No less expansively, on the ‘civilization that the United States is now called upon to defend’, Harris concludes that ‘it is in the interest of civilization, wherever it is found, to keep the legitimacy of the Pax Americana intact’.145 This rhetoric of threat and protection has long been a feature of neoconservative argument: 137

On the historical development of US exceptionalism, see e.g. Tuveson, Redeemer Nation, supra note 68. 138 On the ‘American exceptionalist vision’ as an oppositional construct, see Dorothy Ross, The Origins of American Social Science (Cambridge University Press: Cambridge, 1991) 22-50, esp. 26-28. 139

See e.g. Lawrence F. Kaplan and William Kristol, The War Over Iraq: Saddam’s Tyranny and America’s Mission (Encounter: San Francisco, 2003) and Michael A. Ledeen, The War Against the Terror Masters: Why it Happened, Where we are Now, Why We’ll Win (St. Martin’s Press: New York, 2002). 140 David Frum and Richard Perle, An End to Evil: How to Win the War on Terror (Random House: New York, 2003) at 279. 141 Gary Dorrien, ‘Consolidating the Empire: Neoconservatism and the Politics of American Dominion’ 6 Political Theology (October 2005) 409-428, esp. 410, 414. 142

Halper and Clarke, America Alone, supra note 31, at 101, 164. An important precedent in this regard is James Burnham, a neoconservative before the term came into fashion, who rejected the idea of compromise on ‘basic issues’; see his The Struggle for the World (Cape: London, 1947) at 176-177. The attitude is shared by post-Cold War neoconservatives, e.g. Michael Ledeen, Freedom Betrayed: How America Led a Democratic Revolution, Won the Cold War, and Walked Away (AEI Books: Washington, DC, 1996). 143

E.g. Schmitt, The Crisis, supra note 20, at 9.

144

Max Boot, The Savage Wars of Peace: Small Wars and the Rise of American Power (Basic Books: New York, 2002) at 352.

145

Lee Harris, Civilization and its Enemies: The Next Stage of History (Free Press: New York, 2004) at 216-217. For a similar claim see Rabkin, The Case for Sovereignty, supra note 66, at 176.

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To dodge or disclaim these responsibilities [for world leadership through ‘American power’] is one form of the abuse of power. If, after Vietnam, the nations of the world become persuaded that we cannot be counted upon to do the kind of “policeman’s” work the world’s foremost power has hitherto performed throughout most of history, we shall unquestionably witness an alarming upsurge in national delinquency and international disorder everywhere. Nor shall we remain unaffected, in our chrome-plated American fortress.146

Compare this with the 2002 National Security Strategy: The U.S. national security strategy will be based on a distinctly American internationalism that reects the union of our values and our national interests. The aim of this strategy is to make the world not just safer but better … While we recognize that our best defense is a good offense, we are also strengthening America’s homeland security to protect against and deter attack.147

Similar logic is evident in the ‘bear in the woods’ analogy Robert Kagan uses to argue that relative to Europe, US military predominance explains its stronger perception of threat and also justies greater US readiness to confront it.148 That the conceivability of future threat bestows ‘responsibility’ for its avoidance on the most materially powerful actor — the essence of the examples just presented, and indeed of so much of neoconservative foreign policy argument — is effectively an inversion of the post hoc ergo propter hoc argument. Rather than the post hoc fallacy of assigning the wrong cause by mistaking a temporal for a causal relationship, the neoconservative ‘ante hoc’ reversal assumes that radical actions in the present can be invariably justied by appealing to a conceivable future catastrophe. This dystopian rationale has a history in neoconservative argument, as was evident for instance in the Cold War-era alarmism of the Committee on the Present Danger (CPD).149 Then, as now, instrumentalist management of collective anxiety and 146

Irving Kristol, ‘We can’t Resign as “Policeman” of the World’, New York Times Magazine, May 12, 1968, 26-27 at 27. For neoconservative ‘protectionist’ rhetoric in the context of the ‘war on terror’, see e.g. Robert Kagan, Of Paradise and Power: America and Europe in the New World Order (Knopf: New York, 2003) e.g. at 31; Michael Mandelbaum, The Case for Goliath: How America Acts as the World’s Government in the 21st Century, (Public Affairs: New York, 2005) esp. 31-73. An example from before the ‘war on terror’ is William Kristol and Robert Kagan, ‘Introduction: National interest and Global Responsibility’, in Robert Kagan and William Kristol (eds) Present Dangers: Crisis and Opportunity in American Foreign and Defense Policy (Encounter: San Francisco, 2000) 3-24. 147

National Security Strategy, supra note 89, at 1, 6

148

Kagan, Paradise and Power, supra note 146, at 31.

149

See Ehrman, The Rise of Neoconservatism, supra note 31, at 111-114; see also Charles Tyroler II (ed.) Alerting America: The Papers of the Committee on the Present Danger (introduction Max M. Kampelman, PergamonBrassey’s: Washington, DC, 1984).

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framing of issues in starkly oppositional terms brought short-term, narrowly distributed political gains: more than thirty CPD members were appointed to the rst Reagan administration’s foreign policy team.150 While speculation is obviously indispensable to responsible policy-making, future scenarios, being irrefutable, are also fertile ground for the sort of occasionalist arguments relied on by Schmitt and neoconservatives. This rationale of urgency is evident in Bush’s 2005 inaugural address: We are led, by events and common sense, to one conclusion: The survival of liberty in our land increasingly depends on the success of liberty in other lands … Across the generations, we have proclaimed the imperative of self-government, because no one is t to be a master and no one deserves to be a slave. Advancing these ideals is the mission that created our Nation … Now, it is the urgent requirement of our Nation’s security and the calling of our time.151

In common with Schmitt, however, these arguments operate through the same rhetorical arsenal of negative denitions, tautologies and the bold assertion of concepts that turn out to be highly exible. For example, in dening sovereignty Rabkin writes: ‘[s]overeignty is, in the rst place, a legal claim † but like any fundamental legal claim, it is one that rests on wider moral or political premises’.152 A notable ambiguity here is the conation of moral and political premises; like Schmitt in his belief that the concept of the political could remain free from moral considerations and ‘normative ideals’,153 Rabkin contradicts himself. He concedes that sovereignty has a political and moral basis, but criticizes attempts at global governance because of their moral claims.154 ‘Wide’ moral aspirations held by the EU are illegitimate in his view because of their universal pretensions,155 but the ‘wideness’ that is a weakness here is treated as a strength by Rabkin in his assertion throughout the book of the conditions under which specically US claims to sovereignty are valid. Rabkin’s is not a defence of sovereignty as a general principle, but an assertion of unlimited political licence and of the primacy of US sovereign prerogative over all contravening claims. The ‘national interest’ is perceived in global terms, which is indeed a dening feature of neoconservative polemics: 150 Ora Seliktar, Politics, Paradigms, and Intelligence Failures: Why so Few Predicted the Collapse of the Soviet Union (M.E. Sharpe: Armonk, NY, and London, 2004) at 82. 151 George W. Bush, ‘Inaugural Address’, 41 Weekly Compilation of Presidential Documents (January 24, 2005) 74-76 at 74. 152

Rabkin, The Case for Sovereignty, supra note 66, at 13.

153

See e.g. Schmitt, The Concept of the Political, supra note 1, at 27, 28.

154

Rabkin, The Case for Sovereignty, supra note 66, e.g. ix-xi.

155

Ibid., esp. at 62-63. For a similar view, contrasting the US with the EU, see George F. Will, ‘The Slow Undoing: The Assault on, and Underestimation of, Nationality’, in Stelzer (ed.) Neoconservatism, supra note 27, 129-139 at 132-134.

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[T]he complicated workings of foreign policy and the exceptional position of the United States should guard us against believing that the national interest can be measured in a quasi-scientic fashion … we will occasionally have to intervene abroad even when we cannot prove that a narrowly construed ‘vital interest’ of the United States is at stake … This is the standard of a global superpower that intends to shape the international environment to its own advantage.156

Should others, then, be worried about the United States pursuing its particular good universally? Perhaps, if one is to draw conclusions in line with historian David Ryan’s argument that the United States, at least since the proclamation of the Monroe Doctrine in the early nineteenth century, has continually watered down its espousal ‘of ideals and universals with more pragmatic particulars’.157 Certainly not, if one accepts the notion of ‘benevolent hegemony’,158 or nds plausibility in Rabkin’s proposition of a benevolent trickledown effect: on major international ‘strategic issues’ there is ‘one great stockholder with many small beneciaries’.159 Robert Kagan provides the reassurance that seeking out its own advantage on the world stage gives other wellintentioned actors no genuine cause for fear, because the United States is ‘a Behemoth with a conscience.’160 Law professor John Yoo, whose views have been inuential on US policies in the ‘war on terror’,161 argues that the legitimacy of the 2003 invasion of Iraq need not rest on nding weapons of mass destruction, which was the original justication for the war. Rather, it was an act of global defence: Perhaps the better way to judge the legitimacy of the Iraq war is not as selfdefense, but rather as a safety regulation. Iraq, with its marriage of WMD, a hostile and repressive dictator, and support for terrorism, represented a threat to the international system … The United States and its allies acted to remove this

156

William Kristol and Robert Kagan, ‘National Interest and Global Responsibility’, in Stelzer (ed.), Neoconservatism, supra note 27, 57-74, at 64-65. See also Irving Kristol, ‘The Neoconservative Persuasion’, supra note 27, at 36-37. For a discussion of the issue of national interest and military intervention from an international legal perspective, see Olof Beckman, Armed Intervention: Pursuing Legitimacy and the Pragmatic Use of Legal Argument, Doctoral Dissertation, Lund University (2005) at 274-279. 157

Ryan, US Foreign Policy, supra note 79, at 40.

158

Kristol and Kagan, ‘Neo-Reaganite’, supra note 86, at 22.

159

Jeremy Rabkin, The Case for Sovereignty, supra note 66, at 143. For one of the most explicit arguments along these lines that have been made since 9/11, see Mandelbaum, Goliath, supra note 146. 160 161

Robert Kagan, Paradise and Power, supra note 146, at 41.

See Jeffrey Rosen, ‘The Yoo Presidency’, 155 The New York Times Magazine 155 (December 11, 2005), at 106; Tim Golden, ‘A Junior Aide had a Big Role in Terror Policy’, The New York Times, December 23, 2005, at A1; and Paul M. Barrett, ‘Opinion Maker: A Young Lawyer Helps Chart Shift in Foreign Policy’, The Wall Street Journal, September 12, 2005, at A1.

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According to the occasionalist rationale by which neoconservatives espouse universals, however, they also suggest that US primacy puts it in the paradoxical position where it has more to fear from others than vice versa. For Ledeen, US strength and success is directly proportional to the threat it experiences: ‘the United States can no more avoid the enmity of tyrants than it can abandon its national quest to perfect the search for liberty and happiness … As long as the United States is strong and successful, they will attack, as best they can’.163 ‘Anti-Americanism’ also takes more subtle forms, against which US sovereignty must be shielded unconditionally, by subordinating international legal agreements to the US Constitution.164 This was also the message of US Senator Jesse Helms to the UN Security Council in 2000: ‘when the United States joins a treaty organization, it holds no legal authority over us … no treaty or law can ever supersede the one document that all Americans hold sacred: The U.S. Constitution’.165 Kagan is equally explicit on the superiority of ‘American national universalism’ to Europeans’ ‘proselytizing their doctrines of international law and international institutions’.166 In describing the ‘the neoconservative persuasion’ in US foreign policy, Irving Kristol notes that ‘statesmen should, above all, have the ability to distinguish friends from enemies’.167 However, the neoconservative justication for US autonomy from international legal constraints would seem to owe far less to an application of the distinction between friend and enemy central to Schmitt’s argument in The Concept of the Political than to an inability to distinguish enemies from anybody else. As such, 162

John Yoo, ‘Why Iraq’s Weapons Don’t Matter’, Legal Times, August 4, 2003, available at <www.aei.org/publications/pubID.18962,lter.all/pub_detail.asp> (visited 8 September 2006). 163

Ledeen, ‘The Advance of Freedom’, supra note 2, at 15.

164

Rabkin, supra note 66, esp. 169-175. Similarly, Yoo and Delahunty argue that ‘deference to foreign decisions runs counter to the [US] constitutional structure’: Robert J. Delahunty and John C. Yoo, ‘Against Foreign Law’, 29 Harvard Journal of Law & Public Policy (Fall 2005) 291-330 at 299. On the US scepticism towards international law, despite also ‘being a driving force’ in its development, see Krisch, ‘Weak as Constraint’, supra note 98, at 44. The US Constitution contains the so-called ‘Appointments Clause’ of Article 11, Section 2, which in Yoo’s interpretation limits the transfer of federal power ‘to entities that are not directly responsible to the American people’: John Yoo, ‘The New Sovereignty and the Old Constitution: The Chemical Weapons Convention and the Appointments Clause’, 15 Constitutional Commentary (Spring 1998) 87-130 at 96. 165

‘Address by Senator Jesse Helms Before the United Nations Security Council’, available on the Jesse Helms Center website at <www.jessehelmscenter.org/jessehelms/documents/ AddressbySenatorJesseHelmstoUNSecurityCouncil.pdf> (visited 24 September 2006). 166

Kagan, Paradise and Power, supra note 146, at 88.

167

Kristol, ‘The Neoconservative Persuasion’, supra note 27, at 36.

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neoconservative anxiety comes far closer to Schmitt’s aversion to the ‘assimilated enemy’168 — there are few friends, only well-hidden saboteurs, among those who are not for the time being openly hostile to the United States. Rabkin’s approach is a case in point, illustrating well the neoconservative difculty with Schmitt’s deceptively clear-cut friend/enemy distinction: ‘Apart from actual enemies, there are countries we must recognize as potential enemies. Apart from all those with which we maintain ‘friendly relations’ there are countries we would hope to maintain as special friends’.169 His placement of quotation marks around ‘friendly relations’ suggests a potential third category of enemy; even ‘special friend’ is given only conditional status by the caveat ‘we would hope’. Four years after the 9/11 attacks, former Speaker of the US House of Representatives Newt Gingrich stated that the ‘war on terrorism’ is ‘a critical time in our nation’s history … the civilized world is in the fourth year of a global war against committed ideological enemies bent on using terror’.170 This is a universalist assumption on whatever animosity is shown to the United States; his move from ‘our nation’ to the ‘civilized world’ extends the obligation to take sides to those beyond the United States itself. The scale and unrelenting nature of the threat depicted here may at rst glance appear to be his central message, but the main challenge here seems directed not at existing enemies but at potential or presumed friends. Implicit in his assertion is a challenge to those who wish to see themselves as part of the ‘civilized world’ and not on the wrong side of the United States.171 Apart from the difculty of telling friend from enemy in the ‘war on terror’, Krauthammer is adamant that the former is strictly of instrumental value in the US execution of its freely chosen ‘missions’: ‘We take our friends where we nd them, but only in order to help us in accomplishing the mission. The mission comes rst, and

168

Schmitt, Glossarium, supra note 49, at 199. Müller suggests that Schmitt’s specic objections to assimilated Jews expressed in his diaries (reproduced in Glossarium) can be seen as more broadly symbolic of his attitude towards the assimilation and reconciliation of difference in general: Müller, A Dangerous Mind, supra note 24, at 58. On the problems posed by ‘heterogeneity’ for the distinction between friend and enemy Schmitt considers integral to political life, see his own ‘Preface to the Second Edition (1926): On the Contradiction Between Parliamentarism and Democracy’, in Schmitt, The Crisis, supra note 20, 1-17, esp. 9-13. On the friend/enemy distinction itself see Schmitt, The Concept of the Political, supra note 1, esp. 25-37. 169

Rabkin, The Case for Sovereignty, supra note 66, at 186.

170

Newt Gingrich, ‘Conrm Bolton: America Needs John Bolton Because the UN Has to Change’, National Review Online, June 20, 2005, <www.nationalreview.com/comment/gingrich200506200752.asp (visited 25 September 2006). 171

The tendency to see only different grades of enemy is not unique to neoconservatism; Hofstadter has argued that ‘the paranoid style’ is a time-honoured aspect of US political thinking. Richard Hofstadter, The Paranoid Style in American Politics and Other Essays (Knopf: New York, 1965).

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we decide it’.172 In its ambiguity, this conception of ‘friend’ is a potentially rich source of justication for Schmittian ‘political discretion’, a tactical disposition opposed to international legal cosmopolitanism.173 The pressure to further instrumentalize the international legal and political order to serve privileged interests would surely mean the effective abandonment of the pursuit of justice as a shared objective. Chesterman’s remarks on this development in the 1990s are cogent. Subjecting law to ‘the ckle winds of the political climate’ corrodes the normative power of law: ‘It is precisely the aim of an international rule of law to restrain the arbitrary exercise of power in international society; equally it should prevent the exercise of such power being legitimated by dubious legal processes’.174 The core of neoconservative occasionalism after the Cold War and since 9/11 in particular — that the United States is taking up the burden of ghting for the ‘correct’ set of universal values in the face of such obstructions — is nowhere more evident than in the advocacy of ‘democracy’ as the US global mission.

‘Democracy’, Distinction and Legitimacy: Ways out of Legal Community? Cold War-era neoconservatism had an ambivalent attitude towards the spread of democracy as a US foreign policy goal.175 However, since ‘history’s unwelcome return in September 2001’,176 reference to democracy has become instrumental to their arguments 172

Charles Krauthammer, ‘The Unipolar Moment Revisited’, The National Interest 70 (Winter 2002/2003) 5-17 at 10. 173 Koskenniemi, ‘International Law as Political Theology’, supra note 6, at 503. In drawing a contrast with Schmitt, Koskenniemi is here referring to the ‘optimistic cosmopolitanism’ of Lauterpacht. 174

Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford University Press: Oxford, 2001) at 161. See also Martti Koskenniemi, ‘The Lady Doth Protest Too Much: Kosovo, and the Turn to Ethics in International Law, 65 Modern Law Review (March 2002) 159-175 at 175: ‘whatever other struggles it will have to weigh, the inner anxiety of the Prince is less a problem [for formalist international law] to resolve than an objective to achieve’. 175 See e.g. Halper and Clarke, America Alone, supra note 31, at 76-81; Steinfels, The Neoconservatives, supra note 31, at 248-272; Irving Kristol, ‘American Intellectuals and Foreign Policy’, 45 Foreign Affairs (July 1967) 594-609 at 609; and Jeanne Kirkpatrick, ‘A Normal Country in a Normal Time’, 21 The National Interest (Fall 1990) 40-44 at 43. Krauthammer’s is a contrary view: ‘With the decline of communism, the advancement of democracy should become the touchstone of a new ideological American foreign policy’. Charles Krauthammer, ‘Universal Dominion: Towards a Unipolar World’, 18 The National Interest (Winter 1989/90) 47-49 at 47. 176

Charles Krauthammer, ‘In Defense’, supra note 87, at 200.

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for US primacy. ‘Instrumental’ may indeed be the operative word: in Harvey’s view neoconservatism is profoundly undemocratic, an authoritarian form of communitarianism that sprung up in reaction to the perceived over-individualism and permissiveness of capitalist society.177 To assess the neoconservative conception of democracy and its foreign policy functions, I will briey examine some approaches endorsed by neoconservatives and the Bush administration in light of the ‘war on terror’. The New World Order Forum was jointly organized by the American Enterprise Institute for Public Policy Research (AEI), a Washington, DC-based think tank with a neoconservative line in foreign policy,178 in July 2003, on global security and prospects for ‘reform’ of the United Nations.179 One proposal was ‘A Community of Democracies as an Alternative Body’, the objective of which would be to ‘develop new norms for military intervention that go beyond existing denitions of state sovereignty’.180 This would institutionalize a distinction between sovereign and non-sovereign states on the basis of democracy: [T]here would be a major international conference, “under American leadership”, to create a new body that is widely accepted as having “a new moral legitimacy” founded upon the idea that only democracies are sovereign. Membership in this group would be open only to states that meet certain standards of democracy and that are committed to individual freedom. The Community of Democracies would be independent of, but alongside, the UN Security Council, and membership would be by invitation only.181 177

David Harvey, A Brief History of Neoliberalism (Oxford University Press: Oxford, 2005) at 81-5, 195-197. For an inuential example of neoconservative opposition to domestic ‘decadence’ see Irving Kristol, Two Cheers for Capitalism (New York: Basic Books, 1978) esp. at 66: ‘The enemy of liberal capitalism today is not so much socialism as it is nihilism’ (emphasis in the original). 178 The AEI has been called ‘the institutional home of modern neo-conservatism’; Halper and Clarke, America Alone, supra note 31, at 105. In March 2003 Bush conrmed the inuence of the AEI on US foreign policy, noting that his administration had recruited 20 of its ‘minds’. ‘Remarks to the American Enterprise Institute Annual Dinner’, Weekly Compilation of Presidential Documents 39 (9) 247†250 at 247. On the AEI’s role in the US policies that led to the 2003 invasion of Iraq, see Benjamin Wallace-Wells, ‘In the Tank: The Intellectual Decline of AEI’, 35 Washington Monthly (December 2003) 24†26 at 25. On the close involvement of many inuential US political gures, including current members of government, with the AEI, see ‘The Charge of the Think-Tanks’, The Economist, February 15 2003, at 33, and Brian Whitaker, ‘US Thinktanks Give Lessons in Foreign Policy’, The Guardian, August 19, 2002, available at <www.guardian.co.uk/elsewhere/journalist/story/0,,777100,00.html> (visited 28 September 2006). 179

New World Order Forum event summary, ‘The UN and Global Security — Do we Need to ‘Reinvent’ the UN, and if So, How?’, available at <www.aei.org/publications/pubID.18049,lter.all/pub_detail.asp> (visited 22 September 2006). 180 181

Ibid.

Ibid. Here and in all subsequent citations double quotation marks indicate direct quotations from the Forum.

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In this vision, the UN: would probably be limited to dealing with soft “humanitarian concerns,” while the new Community would be seen as destined to grow in power and authority and to be viewed by failed states and sponsors of terrorism as a force to be reckoned with. The Community would also have to establish the terms by which preemptive military intervention could be used against non-democracies.182

Although the rst of these two quotes refers to the establishment of a Community of Democracies, an intergovernmental organization of that name already existed at the time. The Community of Democracies was set up in June 2000 with the express aim of promoting ‘core democratic principles and practices’ worldwide. Currently over 100 states are signatories to the Community of Democracies’ founding statute, the Warsaw Declaration.183 Whereas the Declaration contains no reference to military intervention,184 the aforementioned comments suggest that the New World Order Forum was partly an attempt to steer the Community of Democracies in the more combative direction preferred by neoconservatives. Indeed, although it has not attracted much attention in doing so, the G.W. Bush administration has continued its Democrat predecessor’s support for the Community of Democracies.185 In endorsing the objectives set out by Bush in the 2002 National Security Strategy — to ‘actively work to bring the hope of democracy, development, free markets, and free trade to every corner of the world’186 — because ‘they are the right thing to do’,187 US Under-Secretary of State for Global Affairs Paula Dobriansky considers the Community of Democracies one of the most promising means of pursuing these aims.188 As it was for its proponents at the New World Order Forum, so also for the Bush administration the attraction of the Community of Democracies is its benevolent discrimination: ‘unlike virtually all international organizations, it is not based on the principle of universal membership. Dictators and rogue states “need not apply”’.189 David Frum, former speechwriter for President George W. Bush and source of the 182

Ibid.

183

See the preamble to the Warsaw Declaration, available on the US Department of State website at <www.state.gov/g/drl/rls/26811.htm> (visited 29 September 2006). 184

See Warsaw Declaration, ibid.

185

Michael Hirsh, At War with Ourselves: Why America is Squandering its Chance to Build a Better World (Oxford University Press: Oxford and New York, 2004) at 108.

186

Preamble to the National Security Strategy, supra note 89, at iv.

187

Paula J. Dobriansky, ‘Advancing Democracy’, 77 The National Interest (Fall 2004) 40-47 at 40.

188

Ibid., at 41.

189

Dobriansky, ‘Advancing Democracy’, supra note 187, at 42.

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infamous reference to the ‘axis of evil’ in the 2002 State of the Union address,190 also takes up the cause of the Community of Democracies as a means of moving beyond the UN and towards more informal international political arrangements:191 Perhaps the US could form, outside the UN, an informal caucus of democratic states, not only European but also Asian and Latin American. In this caucus, issues could be debated with less posturing and fakery than at the UN. This forum could reassure democracies without a Security Council seat that their interests will be championed by the one country with the power and the breadth of vision to speak up for something other than its own immediate interests.192

‘Something’, that is, more universal and less potentially constraining than the pursuit of more concrete and delimited national interests. By Frum’s rationale, obstruction of the US would be an affront not to one state’s interests but to the global good; this is an example of what Koskenniemi calls ‘hegemonic contestation’, the assumption of a particularistic preference as the universal preference.193 The emergence of loose networks like the Community of Democracies and the New World Order Forum with expansively-worded agendas for the ‘hegemonic contestation’ of democracy seems a predictable, arguably pernicious194 progression within the overall trajectory of post-Cold War international relations theory towards making ‘the moral case’ for new forms of political community.195 This development exacerbates what Hurrell calls ‘the paradox of universalism’: the successful promotion of ‘global’ values ‘will often depend on the willingness of particularly powerful states to promote them’.196 Because of the often stridently moralistic tone of the neoconservative arguments that found ofcial endorsement and application in the ‘war on terror’, there would 190

‘How I Created the Axis of Evil’, [Interview with David Frum], The Guardian, 28 January 2003; George W. Bush, ‘Address Before a Joint Session of the Congress on the State of the Union’, 38 Weekly Compilation of Presidential Documents (February 4, 2002) 133-139 at 135. 191 This is a characteristic of the Community of Democracies noted by Dobriansky also; see ‘Advancing Democracy’, supra note 187, at 42. 192

David Frum, ‘The End of the Transatlantic Affair’, Financial Times, 31 January 2005, at 15.

193

Martti Koskenniemi, ‘International Law and Hegemony: A Reconguration’, 17 Cambridge Review of International Affairs (July 2004) 197-218 at 199-200. 194

For this view see David Chandler, ‘Universal Ethics and Elite Politics: The Limits of Normative Human Rights Theory’, 5 The International Journal of Human Rights (Winter 2001) 72-89, esp. 82-87. 195 Andrew Linklater, The Transformation of Political Community: Ethical Foundations of the Post-Westphalian Era (Polity Press: Cambridge, 1998) at 3. 196

Andrew Hurrell, ‘Security and Inequality’, in Andrew Hurrell and Ngaire Woods (eds), Inequality, Globalization, and World Politics (Oxford University Press: Oxford, 1999) 248-272 at 291.

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seem to be little congruence with Schmitt. But this is only the case if one reads Schmitt very supercially and takes him at his word — which seems to me a treacherous path to follow. Avoiding this as I have tried to do, one nds much to unite the two sets of arguments. In the neoconservative approach to democracy, there are two major afnities with Schmitt. The rst is their equally exclusionary interpretation of democracy. Second, like Schmitt US neoconservatives seek to articulate the pursuit of dominance in a language that will not bring the threat of undue constraint and potential emasculation of the sovereign, as law does, but instead, far less demandingly, offer it a chance to sanitize its politics to the modest degree necessary to continue acting freely and with impunity. In addition to shared vocabularies of exceptionalism and decisionism, Schmitt and neoconservative also seized upon the same, similarly occasionalist instrument for minimalist sanitization of politics. This they nd in the language of ‘legitimacy’, a far more politically accommodating route to interaction than the rigors of law.197 Kagan illustrates the desire for a source of broader approval for neoconservatives’ project of US supremacy that, unlike international law, entails no curtailing of that project.198 As Clark notes, although legitimacy ‘is much the most favoured word in the practitioner’s lexicon’, it is largely avoided by international relations scholarship.199 Scholars may rightfully distrust legitimacy talk,200 but that would be no reason to overlook the consequences of the growing tendency in international affairs to justify actions by appeal to this vague and thus strategically attractive notion. The above brief discussion of the endorsement of democracy as an open-ended and potentially militant ‘test of good breeding’201 not only by legal professionals, political analysts and pundits but also at the highest levels of US politics, illustrates the troublesome effects of the turn to legitimacy in international affairs.202 As Clark argues in detail, in 197

For Schmitt’s views on legitimacy the main source is Legalität und Legitimität, supra note 62, see esp. 25-37. For his exceptionalist justication of sovereign legitimacy, see also Political Theology, supra note 5, esp. 5-15.

198

Robert Kagan, ‘A Tougher War for the U.S. is One of Legitimacy’, New York Times, January 24, 2004, at B7.

199

Ian Clark, Legitimacy in International Society (Oxford: Oxford University Press, 2005), at 2.

200

An example is Martti Koskenniemi, ‘Book Review: The Power of Legitimacy Among Nations, by Thomas M. Franck’, 86 American Journal of International Law (January 1992) 175-178, esp. at 175, 178.

201

Simpson, Outlaw States, supra note 135, at 237. For discussion of the endorsement of democratic governance within international law as an ‘anti-pluralist regime’, see 299-316. 202

‘Any survey of political theory will suggest that the concept is a recent innovation. The classics — Hobbes, Locke, Rousseau, Marx — had no use for it’: Koskenniemi, ‘Book Review’, supra note 200, at 175. However, the concept is not as new as Koskenniemi claims; some have argued that the aforementioned gures and others gave serious thought to the idea of legitimacy. On Rousseau, for example, see J.G. Merquior, Rousseau and Weber: Two Studies in the Theory of Legitimacy (Routledge and Kegan Paul: London, 1980) 17-86, esp. 57-76 (on what Merquior describes as Rousseau’s theory of democratic legitimacy).

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international political practice since the end of the Cold War legitimacy is developing as a disposition towards — rightful membership of the international community rather than of rightful conduct: ‘legitimacy has been used purposefully as an instrument for excluding, effectively if not in a formal diplomatic sense, some states from the full embrace of international society’.203 Consequently, the need for more rigorous study of the concept grows alongside its continued use as a synonym for ‘just disequilibrium’.204 In current political practice, legitimacy is an increasingly common justication for the consolidation of the Schmittian tautology of ‘equality among equals’ as the dening principle of the international order: An absolute human equality, then, would be an equality understood only in terms of itself and without risk; it would be an equality without the necessary correlate of inequality, and as a result conceptually and practically meaningless, an indifferent equality … The sphere of the political and therefore politics itself would also be devalued in at least the same degree, and would become something insignicant.205

Conclusion: The Irony of Occasionalism Bendersky criticizes Schmitt for having ‘laid bare the deciencies of the [Weimar] system without considering the demoralizing effects his criticism would have on German society’.206 In the same vein, an even wider charge can be made against the neoconservatives. Through their advocacy of a global ‘war on terror’, they have contributed to the most belligerent episode thus far in the continually emerging tendency in international affairs to lay bare the often admittedly undeniable deciencies of other state’s political systems, often without considering constructive, reciprocal means of

Also, Koskenniemi (‘Book Review’, supra note 200, at 175) for some reason omits from his short list of classics Max Weber, perhaps the most renowned theorist of legitimacy and surely a classic political theorist in his own right. For discussion of Weber’s concept of legitimacy see e.g. Merquior, Rousseau and Weber, at 89-136), and Robert Grafstein, ‘The Failure of Weber’s Conception of Legitimacy: Its Causes and Implications’, 43 Journal of Politics (May 1981) 456-472. 203

Clark, Legitimacy in International Society, supra note 199, at 180. See 173-189 for discussion of the use of ‘legitimacy’ to denote rightful membership and exclusion rather than as a normative, universally applicable principle of rightful conduct. 204

Ibid., at 239-243.

205

Schmitt, ‘Preface’, supra note 168, at 12.

206

Joseph Bendersky, Carl Schmitt: Theorist for the Reich (Princeton University Press: Princeton, 1983) at 70-71.

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engagement.207 The neoconservative predilection for the combative vocabulary of ‘war on terror’ has reinforced the exceptionalist and even supremacist attitudes increasingly evident in US foreign policy developments since 9/11.208 Unrestrained exploitation of contingencies and the conation of all dissent and regulatory mechanisms such as international legal commitments with a genuine but in reality limited, and certainly not existential threat becomes only a self-fullling prophecy. As Jervis rightly notes, with the Bush Doctrine the United States ‘may be only the latest in a long line of countries that is unable to place sensible limits on its fears and aspirations’.209 While policy-makers and their advisors must use counterfactual thinking in order to assess possible future scenarios,210 invoking a dire future to justify an opportunistic approach to law and norms will consolidate only the type of world order it claims to change or prevent. This is the major irony of occasionalism. In sum, neoconservative arguments for a US-led ‘war on terror’ do not serve the pursuit of ‘rst principles’,211 still less of any concrete and defensible conception of freedom. If the ‘war on terror’ has led to any concrete advances in freedom for anyone, this is only true in regard to how the lines of argument discussed have freed political strategists from the restrictions and commitments of international law and reciprocal political practice. By denition, radical occasionalism implies that today’s commitment would mean the signing away of tomorrow’s strategic advantage; universalist ends can be espoused, but only in a manner that leaves one or multiple escape routes to the political attractions of the next crisis.212 In spirit, then, the ‘war on terror’ is Carl Schmitt’s 207 From the growing body of literature on the moralistic turn in international affairs that has gathered pace since the end of the Cold War, see e.g. Koskenniemi, ‘The Lady’, supra note 174; Stephen Chan, Out of Evil: New International Politics and Old Doctrines of War (I.B. Tauris: London, 2004); and David Chandler, ‘Rhetoric Without Responsibility: The Attraction of ‘Ethical’ Foreign Policy’, 5 British Journal of Politics and International Relations (August 2003) 295-316. Even more scathing is Alain Badiou, Ethics: An Essay on the Understanding of Evil (rst published 1998) (translated by Peter Hallward, Verso: London and New York, 2001) esp. 1-39. 208

For comment see e.g. Hoffmann, ‘The New Version’, supra note 80, esp. 233-236.

209

Robert Jervis, ‘Understanding the Bush Doctrine’, in G. John Ikenberry (ed.), American Foreign Policy: Theoretical Essays, Fifth Edition, (Georgetown University Press: New York, 2005) 576–599 at 576. 210

On the difculties involved in such policy-making see Lee Clarke, Worst Cases: Terror and Catastrophe in the Popular Imagination (University of Chicago Press: Chicago and London, 2006) esp. 99-128, 173-175.

211 212

Robert Kagan, ‘A Tougher War’, supra note 198.

Because genuine threats obviously do exist, it is incumbent upon those in power to concentrate on those rather than instrumentalizing insecurity for narrow and often counter-productive political advantage. From a social psychological perspective, however, the tactics and rationale I have examined in this paper as radical occasionalism may be partly explained by the existence of a correlation between threat and authoritarianism. For evidence of this see Andrew J. Perrin, ‘National Threat and Political Culture: Authoritarianism, Antiauthoritarianism, and the September 11 Attacks’, 26 Political Psychology (April 2005) 167-194.

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war. Schmitt made a ne art of the occasionalist argument; since 11 September, 2001 neoconservatives seemed set on rening it, with predictably damaging consequences. Whether they will be allowed to continue their occasionalist experiments at the highest levels of US foreign policy after the debacle of Iraq and indeed of the ‘war on terror’ itself is an open question.

The Danish Cartoons Row: Re-Drawing the Limits of the Right to Freedom of Expression? Aurel Sari

Introduction On 30 September 2005, the Jyllands-Posten, a Danish daily newspaper, published a series of twelve satirical cartoons depicting the Prophet Mohammed. The publication of the caricatures caused indignation and outrage among Muslims all over the world, as many regarded the pictures as deeply offensive to their religious beliefs. Within a few months of their publication, the controversy surrounding the cartoons had escalated into an international crisis of considerable proportions. In a letter addressed to the Danish Prime Minister Anders Fogh Rasmussen on 12 October 2005, the ambassadors of ten predominantly Muslim countries and the Head of the Palestinian Delegation to Denmark deplored the cartoons, urged the Government to initiate legal proceedings against those responsible, and requested an urgent meeting with the Prime Minister. The Danish Government denied both of these request on the grounds that it had no means of inuencing the press.1 As relations between Denmark and Muslim countries began to deteriorate in late 2005 and early 2006, various newspapers outside Denmark decided to reprint some or all of the offending pictures in support of freedom of expression.2 Meanwhile public awareness of the cartoons and anger over the handling of the row increased steadily in Muslim countries. The crisis reached a turning point at the end of January 2006. On 26 January, Saudi Arabia recalled its ambassador to Denmark, and subsequently Libya, Syria and Iran *

Doctoral Candidate, University College London ([email protected]). I am indebted to Professors Eileen Denza and Eric Barendt for their comments on an earlier version of this paper; I am also grateful to the editors of the Yearbook. The usual disclaimer applies. 1 Agence France-Presse (AFP), ‘Danish PM touts freedom of expression in Mohammed cartoons row’, 21 October 2005. 2 By early February 2006, over 70 newspapers in about 40 countries—including some Muslim newspapers— have republished the caricatures.

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did likewise. Consumers in a growing number of countries began to boycott Danish goods.3 Threats against Danish interests and citizens intensied. Eventually, tensions boiled over on 4 February when the building housing the Chilean, Danish and Swedish embassies was attacked and set on re by angry demonstrators in Damascus. The same fate befell the Norwegian embassy. Over the next few days, demonstrators in Lebanon, Iran and Indonesia attacked and damaged the diplomatic and consular premises of several European States. Despite calls for calm, protests and riots continued for several weeks in a number of countries.4 The publication of the cartoons and the ensuing international standoff has generated a passionate debate around the world concerning the limits of free speech, the relationship between the West and Muslim countries, and the place of religion in liberal democracies more generally. Although the row over the cartoons was essentially a political conict, it raised several important questions of international law. In particular, it has brought into sharp focus the relationship between the right to freedom of expression on the one hand, and the right to freedom of thought, conscience and religion on the other hand, as enshrined in various international instruments, above all the European Convention on Human Rights (ECHR),5 the International Covenant on Civil and Political Rights (ICCPR)6 and the Cairo Declaration on Human Rights in Islam.7 The purpose of this paper is to give an account of certain legal questions raised by the cartoons crisis.8 Beginning with a description of the background of the row, the paper will survey the positions adopted by the relevant international actors concerning the limits of the right to freedom of expression. It will then examine whether or not the publication of the cartoons falls within the scope of this right, consider whether the images contravene any relevant norms, including any restrictions on the exercise of the right to freedom of expression, contained in the applicable international human rights instruments, and briey discuss the alleged prohibition of the defamation of religions under international law. 3

See B. H. Malkawi, ‘The Anti-Danish Trade Boycott: Can it be excused under the WTO?’, (2006) 12 International Trade Law and Regulation 57. 4 It appears that globally up to 139 people have been killed and over 800 injured in clashes sparked by the publication of the cartoons. See <www.cartoonbodycount.com/> (last visited in August 2006). 5 Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950 (3 September 1953) 213 United Nations Treaty Series 221. 6 International Covenant on Civil and Political Rights, New York, 16 December 1966 (23 March 1976), 999 United Nations Treaty Series 171. 7 Annex to Resolution No 49/19-P of the Nineteenth Islamic Conference of Foreign Ministers, Cairo, 5 August 1990. 8 For an initial comment, see J. Cerone, ‘The Danish Cartoon Row and the International Regulation of Expression’, American Society of International Law Insight, 7 February 2006.

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Background In September 2005, the Jyllands-Posten became aware of the difculties encountered by Danish author and journalist Kåre Bluitgen in nding an artist willing to illustrate his recent children’s book on the life of the Prophet Mohammed.9 Since gural representation is banned as idolatry in some branches of Islam, several illustrators declined to work on the book because of fears that their drawings of the Prophet could expose them to retribution by extremists. The Jyllands-Posten argued in a series of articles that it was untenable that non-Muslims should be bound by Islamic scripture. In line with this position, the editors of the paper subsequently invited a number of Danish illustrators to submit their own interpretations of the Prophet’s appearance. Twelve artists submitted their drawings, which the Jyllands-Posten published on 30 September 2005 together with a comment by Flemming Rose, the paper’s cultural editor.10 The cartoons took different approaches to the subject.11 The drawing placed at the centre of the page showed a police line-up of seven turban-wearing suspects including a Danish far-right politician, Kåre Bluitgen and Jesus Christ, with the witness saying ‘Hm… I can’t really recognize him’. Another drawing consisted of ve abstract shapes incorporating a star and the crescent moon, and a short poem referring to the oppression of women. A third cartoon pictured Mohammed walking in the desert at sunset. One showed an anxious cartoonist drawing a picture of Mohammed behind closed blinds, looking over his shoulder and partially hiding the image with his hand. Another shows a bearded man with a turban standing on a cloud, holding back a line of suicide bombers and saying, with his arms wide open, ‘Stop, stop, we have run out of virgins’. What many have considered as the most controversial image of all portrayed Mohammed wearing a turban in the shape of a bomb with a burning fuse and the Islamic creed written on it. According to the Jyllands-Posten, the publication of these cartoons was intended as a ‘contribution to the debate about self-censorship amongst journalists, authors, and artists.’12 In his comments on the cartoons, Flemming Rose argued that The modern, secular society is rejected by some Muslims. They demand a special position for themselves, insisting that special consideration should be given to their 9

See ‘The story behind the drawings’, 8 February 2005, <www.jp.dk/udland/tema:d=11328/> (last visited in August 2006). 10 Muhammeds ansigt’ Jyllands-Posten, 30 September 2005. 11 See M. Asser, ‘What the Muhammad cartoons portray’, 9 February 2006, BBC News (last visited in August 2006). 12 ‘The story behind the drawings’, supra note 9.

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In an interview held in December 2005, the paper’s editor-in-chief, Carsten Juste, defended the publication of the cartoons as a legitimate journalistic project aimed at investigating the existence of self-censorship in Denmark, and refused to apologize for them.14 He also categorically rejected any suggestion that the paper’s intention was to provoke or to insult Muslims. However, recognizing that the caricatures have ‘indisputably offended many Muslims’, on 30 January 2006 Juste nally did offer an apology for the offence caused, though not for the decision to publish the pictures.15 Muslim organisations in Denmark were quick to condemn the cartoons as an insult to the Prophet, and demanded an ofcial apology. On 14 October 2005, up to 5 000 people took part in a peaceful demonstration outside the ofces of the Jyllands-Posten in Copenhagen. Later that year a delegation consisting of representatives from various Islamic organisation in Denmark, which had earlier lobbied Muslim ambassadors to take up their case with the Danish Government, travelled to Egypt, Syria, Lebanon and Turkey to meet inuential political and religious leaders.16 The delegation presented their hosts with a forty-three page dossier, which included the original twelve cartoons, similar caricatures published by the Danish weekly paper Weekendavisen,17 as well as three additional images that had no connection to the Jyllands-Posten.18 Although key gures in the Middle East were already aware of the caricatures before the Danish delegation’s trip, it appears that the dossier has contributed considerably to the escalation of the row.19 13

‘Muhammeds ansigt’, supra note 10. For a more detailed explanation, see F. Rose, ‘Why I Published Those Cartoons’, 19 February 2006, <www.jp.dk/udland/tema:d=11328> (last visited in August 2006). 14 J. Hansen, ‘The editor and the 12 cartoons’, 18 December 2005, <www.jp.dk/udland/tema:d=11328/> (last visited in August 2006). 15 C. Juste, ‘Honourable Fellow Citizens of the Muslim World’, 30 January 2005, <www.jp.dk/udland/tema: d= 11328/> (last visited in August 2006). 16 H. M. Fattah, ‘At Mecca Meeting, Cartoon Outrage Crystallized’, The New York Times, 9 Feb 2006; ‘Egyptian Al-Azhar shaykh in Denmark to discuss cartoons “insulting prophet” ’, BBC Monitoring Middle East, 5 Dec 2005. 17 For instance, one of these pictures showed a chair entitled ‘This is the Prophet’. See infra note 18. 18 Notoriously, one of the additional pictures was a blurred photocopy showing a man wearing fake pig ears, a pig nose, and a cap, which was submitted as further evidence of the provocations and insults Muslims living in Denmark had to endure. In fact, the image in question was an Associated Press newswire photograph showing the winner of a pig-squealing contest at a French agricultural fair in August 2005. See Associated Press (AP), ‘AP Photo misrepresented in pamphlet circulated by Muslim group’, 9 February 2006. The entire dossier can be found at <en.wikipedia.org/wiki/Akkari-Laban_dossier> (last visited in August 2006). 19 Cf. S. Dalgaard, ‘The Right to Offend: The Causes and Consequences of the “Danish Cartoon Affair”’,

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International protest against the cartoons gathered pace slowly but steadily. In early November 2005, the matter was placed on the agenda of the forthcoming summit of the Organization of the Islamic Conference (OIC) in Mecca.20 On 8 December 2005, the Islamic Conference expressed its concern at [the] rising hatred against Islam and Muslims and condemned the recent incident of desecration of the image of the Holy Prophet Mohammad (PBUH) in the media of certain countries and stressed the responsibility of all governments to ensure full respect of all religions and religious symbols and the inapplicability of using the freedom of expression as a pretext to defame religions.21

On 20 December 2005, the Director General of the Islamic Educational, Scientic and Cultural Organization (ISESCO) called upon the Danish Center for Culture and Development, with which it had earlier concluded a cooperation agreement, to ‘condemn the aggressive campaign conducted against Islam by the Copenhagen-based newspaper “Jyllands-Posten”, in the form of slander caricatures of the person of God’s Messenger Mohammed bin Abdullah’.22 Later that month the Council of the Arab League also condemned the publication of the cartoons, and expressed its ‘surprise and dismay at the reaction of the Danish Government’.23 The Gulf Cooperation Council followed suit in January 2006 by strongly condemning the ‘shameful’ re-publication of the pictures in a Norwegian magazine.24 In addition to these international organizations, a large number of States has also denounced the caricatures, in some cases lodging formal diplomatic protests with the Danish authorities.25 The general tenor of these condemnations varied considerably. RUSI Journal, April 2006, 28. 20 AFP, ‘Mohammed cartoons on the agenda at Islamic summit in Mecca’, 4 November 2005. 21 Final Communiqué, 8 December 2005, <www.oic-oci.org/english/is/ex-3/fc-exsumm-en.htm> (last visited in August 2006). The OIC has fty-seven Member States, many of which have condemned the cartoons on a bilateral level as well. 22 ISESCO calls a Danish cultural institution to condemn outrage against Islam, 20 December 2005, <www.isesco.org.ma/English/press/viewpage.asp?Id=275> (last visited in August 2006). The ISESCO has over fty Member States. 23 AP, ‘Arab League “dismayed” at Danish government’s reaction to offending pictures of Prophet Muhammad’, 29 December 2005. 24 AP, ‘Islamic nations condemn Scandinavian cartoons of Prophet Muhammad as harmful to world dialogue’, 19 January 2006. 25 E.g. Pakistan: Deutsche Presse Agentur (DPA), ‘Pakistan’s president condemns sacrilegious caricatures’, 3 February 2006, DPA ‘Pakistan lodges protest with European envoys’, 4 February 2006; Saudi Arabia: DPA, ‘Saudi Arabia denounces Muhammed cartoons in Danish, Norwegian press’, 24 January 2006, AP, ‘Saudi withdraws Denmark ambassador to protest newspaper’s caricatures of Islam’s prophet’, 26 January 2006;

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Some countries, such as Indonesia, adopted a conciliatory approach, with the Indonesian President recognizing the legitimacy of the anger felt by many Muslims, but calling for the acceptance of the apology from the Jyllands-Posten. In a similar vein, the President of Gabon criticised the caricatures on a visit to France, but declared that he would not waste his time on ‘little cheap rubbish’ as long as there were ‘real things to talk about’.26 Other countries took a decidedly more confrontational line. Iran, in particular, withdrew its ambassador to Denmark, barred Danish journalists from entering the country, and suspended all contracts and negotiations with Danish companies.27 In early February 2006, senior Iranian clerics called for a ‘decisive confrontation’ with the West and for those responsible to be punished,28 while the country’s largest newspaper, Hamshahri, launched a cartoon competition on the holocaust in order to test the limits of the Western notion of freedom of expression.29 Meanwhile, Iranian President Mahmoud Ahmadinejad Bahrain: Bahrain News Agency, ‘Bahraini Cabinet condemns Danish defamation of Prophet Mohammed’, 29 January 2006; Libya: UPI, ‘Libya closes embassy in Denmark’, 29 January 2006; United Arab Emirates: DPA, ‘Emirates joins other Moslem governments in condemnation cartoons’, 30 January 2006; Iraq: AFP, ‘Iraq summons Danish ambassador over cartoon ak’, 31 January 2006, AP, ‘Iraqi religious, political leaders condemn Danish newspaper caricatures of Islam’s prophet’, 31 January 2006; Sudan: AFP, ‘Sudan boycotts Danish products, ofcials over cartoons’, 31 January 2006; Syria: AFP, ‘Syria recalls Denmark ambassador over cartoon row’ 1 February 2006; Afghanistan: AP ‘Afghan president condemns European papers printing cartoons of Prophet Muhammad’ 2 February 2006; Egypt: AFP, ‘Mubarak warns of terrorist threat over prophet cartoons’, 2 February 2006; Morocco: AFP, ‘Morocco condemns cartoons of Prophet Mohammed’, 2 February 2006; Tunisia: AP, ‘Tunisian president condemns mockery of religion, extremism over Prophet Muhammad cartoons’, 2 February 2006; Jordan: Jordan News Agency, ‘King Condemns Vilifying Prophet Muhammad’, 3 February 2006; Maldives: AFP, ‘Maldives join cartoon protest, demand apology’, 3 February 2006; Indonesia: AP, ‘Indonesia’s president condemns caricatures of the Prophet Muhammad’, 4 February 2006; Malaysia: AFP, ‘Malaysian PM condemns cartoons as “deliberate act of provocation” ’, 4 February 2006; Tajikistan: Interfax, ‘Tajikistan chimes in to clamor over Muhammad cartoons’, 4 February 2006; Turkey: AFP, ‘Turkish FM denounces Mohammed cartoons as provocation’, 4 February 2006; Djibout: AFP, ‘Djibouti bans Danish imports after violent Prophet cartoon demos’, 6 February 2006; Nigeria: AP, ‘First major protests in Nigeria, Niger over Muhammad cartoons’, 7 February 2006; Russia: AFP, ‘Putin slams media “provocations” in cartoon row’, 7 February 2006; Turkmenistan: RIA Novosti, ‘Turkmenistan condemns Mohammed cartoons’, 9 February 2006 Yemen: Yemen News Agency, ‘PM reafrms Yemen condemns insults to Prophet Mohammed’, 12 February 2006; Bangladesh: AP ‘Bangladesh condemns publication of Prophet drawings’, 9 February 2006, AFP, ‘Bangladesh parliament condemns Prophet cartoons’, 13 February 2006. 26 AP, ‘Gabon’s president criticizes prophet cartoons on visit to France’, 9 February 2006. 27 DPA, ‘Iran recalls ambassador from Denmark, visa-ban on Danish reporters’, 5 February 2006; AP, ‘Iran’s supreme leader has blasted the West’s publication of the prophet cartoons’, 7 February 2006. 28 DPA, ‘Iranian ayatollahs call for “confrontation” over cartoons’, 3 February 2006; AFP, ‘Cartoon publishers should be punished: Iranian clerics’, 9 February 2006. 29 AFP, ‘Iranian paper in tit-for-tat Holocaust cartoons’, 6 February 2006; AP, ‘Holocaust cartoon contest draws entries from around the world’, 14 February 2006.

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branded the newspapers that published the cartoons as the ‘prisoners of a bunch of blood-sucking Zionists.’30 For its part, the Danish Government stood by the position it adopted at the beginning of the row. Shortly after the Jylland-Posten offered its apology, Prime Minister Rasmussen declared that he was deeply distressed by the fact that these drawings by many Muslims have been seen as a defamation of the Prophet Mohammed and Islam as a religion. I hope that the apology of the independent newspaper Jyllands-Posten will contribute to comfort those that have been hurt. … I want to emphasise that the Danish Government condemns any expression, action or indication that attempts to demonise groups of people on the basis of their religion or ethnic background.31

At the same time, Rasmussen refused to apologise for the publication of the cartoons on the grounds that ‘[a] Danish government can never apologize on behalf of a free and independent newspaper’.32 By contrast, the Norwegian authorities did apologize to various Muslim countries for any offence that may have been caused by the republication of the cartoons in a Norwegian magazine.33 In addition, the Swedish Government appears to have issued a pre-emptive apology for new caricatures that were not in fact published.34

International Reactions to the Cartoons In their reactions to the publication of the cartoons, many States and other relevant actors have relied on legal arguments or referred to norms of international law to deny or defend, as the case may be, the media’s right to print caricatures of the Prophet 30

BBC Monitoring International Reports, ‘Iranian leader says “Blood-Sucking Zionists” holding Europe prisoner’, 6 February 2006; AFP, ‘One more dead, positions harden in cartoon crisis’, 7 February 2006. Cf. AP, ‘Ahmadinejad blames Israel for caricatures’, 11 February 2006. 31 Statement by the Danish Prime Minister Anders Fogh Rasmussen regarding the drawings of the Prophet Mohammed, 31 January 2006, <www.um.dk/en> (last visited in August 2006). 32 AFP, ‘No apologies as Danish PM tries to defuse cartoon row’, 3 February 2006. This position was endorsed, amongst others, by the President of the European Commission, see J. M. Barroso, ‘Statement on the issue of the cartoons of prophet Muhammad’, 15 February 2006, <europa.eu.int/press_room/ index_en.htm> (last visited in August 2006). 33 AP, ‘Norwegian ambassador to Saudi Arabia apologizes for publication of prophet drawings in Norway’, 11 February 2006; DPA, ‘Norwegian government apologizes over cartoons “hurtful to Muslims” ’, 14 February 2006. 34 AP, ‘Sweden pulls all stops to avoid Muslim outrage over drawings’, 11 February 2006.

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Mohammed that could offend the religious sensitivities and beliefs of Muslims at home and abroad. The various positions adopted on this matter can be ordered into three broad groups. The rst group includes those statements that consider the publication of the cartoons to fall squarely within the right to freedom of expression. This position has been adopted mostly by members of the media. The Jyllands-Posten itself has defended the decision to print the cartoons ‘as part of an ongoing public debate on freedom of expression’.35 The legality, under Danish law, of the paper’s action was afrmed by the Regional Public Prosecutor of Viborg in an investigation launched in October 2005 after local Muslim organizations led a report with the Danish police claiming that the pictures violated sections 140 and 266b of the Danish Criminal Code.36 Section 140 provides that any person who, in public, mocks or scorns the religious doctrines or acts of worship of any lawfully existing religious community in Denmark shall be liable to imprisonment for any term not exceeding four months. Section 266b declares that any person who, publicly or with the intention of wider dissemination, makes a statement or imparts other information by which a group of people are threatened, scorned or degraded on account of their race, colour, national or ethnic origin, religion, or sexual inclination shall be liable to a ne or to imprisonment for any term not exceeding two years. In his decision of 6 January 2006, the Regional Public Prosecutor of Viborg noted that the right to freedom of expression must be exercised with the necessary respect for other human rights, but stressed that, as a matter of Danish case-law, journalists enjoyed extensive editorial freedom in covering subjects of public interest.37 Accordingly, he discontinued the investigation as he found no reasonable suspicion that a criminal offence had been committed. The decision to discontinue the case was afrmed by the Danish Director of Public Prosecutions on 15 March 2006.38 Among those newspapers that reprinted some or all of the cartoons, the French daily France Soir declared that ‘no religious dogma can impose itself on a democratic 35

Juste, ‘Honourable Fellow Citizens’, supra note 15. Response by the Danish Government to the letter of 24 November 2005 from the UN Special Rapporteurs, 23 January 2006, <www.um.dk/> (last visited in August 2006). 37 See Response by the Danish Government to letter of 24 November 2005 from UN Special Rapporteur on freedom of religion or belief, Ms. Asma Jahangir, and UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Mr. Doudou Diéne, regarding cartoons representing the Prophet Mohammed published in a newspaper, 23 January 2006, at 1–2 (last visited in August 2006). One of the cases the Regional Prosecutor may have had in mind is that of Jersild v. Denmark (1995) 19 European Human Rights Reports (EHRR) 1. 38 Decision on Possible Criminal Proceedings in the Case of Jyllands-Posten’s Article ‘The Face of Muhammed’, 15 March 2006, <www.rigsadvokaten.dk/media/bilag/afgorelse_engelsk.pdf> (last visited in August 2006). 36

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and secular society’,39 while the German paper Die Welt argued that ‘[t]here is no right to freedom from satire in the West; there is a right to blasphemy’.40 However, it appears that no State or international organization has openly endorsed the publication of the cartoons as a lawful exercise of the right to freedom of expression. This is unsurprising, given that several governments have expressly declared that it is not for the executive, but for the judiciary, to pronounce on the legality of such matters.41 Moreover, in the prevailing political climate a State could realistically have run the risk that its endorsement of the publications would wrongly be interpreted by other States as the adoption of the conduct in question as its own for the purposes of the law of State responsibility.42 Nevertheless, it is noteworthy that some institutions have upheld the right to freedom of expression in very robust terms. According to the President of the European Commission Freedom of speech is part of Europe’s values and traditions. Let me be clear. Freedom of speech is not negotiable. Like all freedoms, its preservation depends on responsible use by individuals. Governments or other public authorities do not prescribe or authorize the opinions expressed by individuals. Conversely, the opinions expressed by individuals engage these individuals, and only them. They do not engage a country, a people, a religion. And we should not allow others to pretend that they do.43

The European Parliament went considerably further by expressing ‘its solidarity with journalists in Jordan, Egypt and Algeria who have courageously reprinted and pointedly commented on the cartoons’.44 The second group includes those positions that deny, in express and unambiguous terms, that the images are covered by the freedom of expression. Many States and international entities that took this position have considered the publication of the 39

AP, ‘French, German newspapers run drawings of Prophet Muhammad that sparked furore’, 1 February 2006. 40 R. Köppel, ‘Heiliger Zorn’, Die Welt, 1 February 2006. See also AFP, ‘European press cites press freedom in cartoons row’, 1 February 2006. 41 E.g. statement by Staatsminister Gloser to the German Bundestag, 10 February 2006, <www.auswaertigesamt.de/> (last visited in August 2006). 42 See Art. 11 of the ILC’s Draft Articles on State Responsibility. The ILC’s commentary makes clear that in most circumstances the mere endorsement of an act does not engage the State’s international responsibility under Art. 11, see UN Doc. A/56/10, at 121–122, reproduced in J. Crawford, The ILC’s Draft Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002) at 122-123. 43 Statement on the issue of the cartoons of prophet Muhammad, 15 February 2006, <europa.eu.int/ press_room/index_en.htm> (last visited in August 2006). 44 European Parliament Resolution on the Right to Freedom of Expression and Respect for Religious Beliefs (P6_TA-PROV(2006)0064), 16 February 2006.

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cartoons as a deliberate act of provocation, and maintained that the right to freedom of expression does not include the right to defame religions and to commit blasphemy or sacrilege. Thus, the OIC summit declaration of 8 December 2005 referred to the ‘inapplicability of using the freedom of expression as a pretext to defame religions’.45 In January 2006, the Secretary General of the OIC declared in a press release that these misguided Islamophobic acts … go beyond the freedom of expression or press and they violate international principles, values and ethics enshrined in the various resolutions and declarations of the United Nations.46

In another press release, the Secretary General of the OIC insisted that the right to freedom of expression has to be exercised by taking into account respect to the values of those with whom one may tend to disagree. Superimposing the right to revile other religions and prophets goes against the essence of freedom of expression as no democracy, legal or political system allows preaching of hate and insult for the sacred values and symbols of others. … It is evident that the invitation of [the] Jylland[s] Posten was motivated to incite hatred and violence against Muslims. … The invitation for [the] depiction of [the] Prophet Muhammad (PBUH) in the backdrop of Islamophobic acts and the general stereotyping of Muslims who are so ignorantly portrayed as demons and terrorists could only have led to ill-informed and malicious stereotyping of the Prophet.47

In a communiqué issued on 3 February 2006, the ISESCO declared that the republication of the offending cartoons in Western newspapers happened ‘in outright deance of the feelings of Muslims and [constituted a] vile offence against their sanctities under the pretext of freedom of expression’. The Organization continued by reiterating its rm condemnation of these heinous racist acts and calls for the enactment of an international law prohibiting any offence to Prophets and desecration of religious sanctities. It also calls upon the international community, governments and organizations to condemn these offending acts directed against the great Prophet 45

Supra note 21. OIC Secretary General denounces the recurrence of the publication of the blasphemous and insulting caricatures, 18 January 2006, <www.oic-oci.org/press/english/2006/January%202006/denemark-2.htm> (last visited in August 2006). 47 Statement by HE Prof Ekmeleddin Ihsanoglu Secretary General of the OIC, 28 January 2006, <www. oic-oci.org/press/english/2006/January%202006/denemark-3.htm> (last visited in August 2006). 46

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of Islam (PBUH), for they sow seeds of hatred, stir up enmity and racism, incite extremism and terrorism and undermine international security and peace.48

The communiqué accused the West of double standards for promptly condemning any criticism or doubt concerning the suffering that the Jews had to endure under Nazism, but refraining from ‘condemning the recurrent offences against the Prophet Mohammed’.49 It ended with a call on all Muslims ‘to adopt an active and solid stand to face this racist, spiteful onslaught and to take all measures necessary to defend the Prophet’.50 Ten days later, the General Secretary of the Gulf Cooperation Council condemned the European newspapers concerned for their failure ‘to abide by the code of ethics, which forms an integral part of the principle of freedom of expression as enshrined by international laws’.51 Many governments too have adopted the position that neither the freedom of expression and opinion, nor the freedom of the press can be relied on as a pretext or excuse to insult sanctities, beliefs and religions.52 Turkmenistan, for instance, declared ‘inadmissible any publications, materials or actions that insult people’s ethnic and religious feelings’.53 Similarly, the Vatican insisted that ‘[t]he right to thought and expression that is anchored in the [Universal] Declaration of Human Rights must not include the right to insult the religious feelings of the faithful’.54 Various calls have been made by public ofcials and civil organizations to protect religion from ‘journalistic terror’, for example by clarifying that the right to freedom of expression and freedom of the press are subject to religious reverence.55 In a report submitted to the UN Commission on Human 48

ISESCO Communiqué on the ongoing offence campaign against the Prophet Mohammed (PBUH), 3 February 2006, <www.isesco.org.ma/English/press/viewpage.asp?Id=288> (last visited in August 2006). 49 In an earlier communiqué, the ISESCO declared that these double standards are ‘contrary to the moral principles, religious teachings as well as to international law that incriminates racism, discrimination and contempt for religions’. See ISESCO regrets the policy of double standards adopted by some Western ofcials, 24 January 2006, <www.isesco.org.ma/English/press/viewpage.asp?Id=283> (last visited in August 2006). 50 Supra note 49. 51 Qatar News Agency, ‘GCC Chief gets a letter from Turkish Prime Minister’, 13 February 2006. 52 E.g. Egypt, Indonesia, the Maldives, Morocco, Pakistan. See supra note 25. 53 Supra note 25. 54 Dichiarazione della Sala Stampa della Santa Sede (B0062-XX.02), 4 February 2006, <www.vatican.va/ news_services/index_news.htm> (last visited in August 2006). See also UPI, ‘Vatican: Don’t mock any religion’, 3 February 2006. 55 E.g. the chairman of the Jordanian Higher Media Council has argued that ‘respect for divine ideologies should be given priority [over] human rights and personal freedoms’, DPA, ‘Redenition of press freedom imperative after cartoons’, 9 February 2006. Cf. AP, ‘Top Saudi cleric says authors, publishers of prophet caricatures must be tried, punished’, 11 February 2006.

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Rights in February 2006, its Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance described the publication of the Danish cartoons as the ‘most serious manifestation of the deteriorating situation of Arab and Muslim populations generally and Islamophobia in particular’.56 Referring to those newspapers that reprinted the offending pictures, the Special Rapporteur declared that These newspapers’ intransigent defence of unlimited freedom of expression is out of step with international norms that seek an appropriate balance between freedom of expression and religious freedom, specically the prohibition of incitement to religious and racial hatred endorsed by all States Members of the United Nations in basic international human rights instruments such as the International Covenant on Civil and Political Rights.57

The third group of reactions to the caricatures includes those statements that, instead of condemning or endorsing the publication of the cartoons in express terms, simply support the right to freedom of expression in principle, but strongly emphasize that its exercise entails special responsibilities, and must therefore be subject to certain qualications. For instance, some have suggested that freedom of expression must respect all religious beliefs. In a joint statement, the UN Secretary-General, the SecretaryGeneral of the OIC, and the EU’s High Representative for the Common Foreign and Security Policy (CFSP) declared that We fully uphold the right of free speech. But we understand the deep hurt and widespread indignation felt in the Muslim world. We believe freedom of the press entails responsibility and discretion, and should respect the beliefs and tenets of all religions.58

This echoed an earlier press release in which the UN Secretary-General stated ‘that the freedom of the press should always be exercised in a way that fully respects the religious beliefs and tenets of all religions.’59 In yet another joint statement, the SecretaryGenerals of the UN, the OIC, and the League of Arab States, and the First Deputy Prime Minister and Foreign Minister of Qatar, the Foreign Minister of Spain and the Foreign Minister of Turkey declared that

56

UN Doc. E/CN.4/2006/17, 13 February 2006, at para. 23. Ibid., at para. 28. 58 UN Doc. SG/2105, 7 February 2006. 59 UN Doc. SG/SM/10334, 2 February 2006. 57

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We reafrm the universal right to freedom of expression. We appeal to everyone to exercise that right responsibly and not to use it as a pretext for incitement to hatred or insult of the deeply held belief of any community.60

The President of the European Parliament and several governments have expressed similar sentiments.61 Others too have underlined that the right to freedom of expression is not unlimited, without, however, expressly subjecting it to the respect of religious beliefs. The Foreign Ministers of Austria and Turkey argued in a joint press release that ‘freedom of expression and respect for revered values do not contradict, but complement one another’.62 The European Parliament urged that ‘freedom of expression should always be exercised within the limits of the law and should coexist with responsibility and with respect for human rights, religious feelings and beliefs, whether they be connected with the Islamic, Christian, Jewish or any other religion’.63 Even this brief survey of the positions adopted by the relevant international actors reveals that legal considerations and arguments have featured prominently in the row over the cartoons, even though they did so mainly in the form of unilateral statements rather than a potentially more constructive legal dialogue. Nevertheless, three disputed points of law can be clearly identied. First, opinions have differed from the very start as to whether or not the publication of the cartoons is covered by the right to freedom of expression. Second, it has been contended that the caricatures constitute an incitement to racial as well as religious hatred and violence, and more generally that they are an expression of Islamophobia. Third, it has also been claimed that the publication of the cartoons violates an alleged rule of international law prohibiting the defamation of religions. The following sections of the paper will examine these three points in more detail.

The Scope of Freedom of Expression Several statements issued in reaction to the row have suggested, either expressly or by implication, that the publication of the cartoons falls outside the scope of the right to 60

UN Doc. A/60/706, 25 February 2006. Statement by Josep Borrell Fontelles, 6 February 2006, <www.europarl.europa.eu/intcoop/empa/ assembly_documents/statementborrell6feb_en.pdf> (last visited in August 2006). See also the press release by three Special Rapporteurs to the UN Commission on Human Rights of 8 February 2006, <www.ohchr.org/english/press/newsFrameset-2.htm> (last visited in August 2006). 62 Joint Press Release, 2 February 2006, <www.mfa.gov.tr/mfa> (last visited in August 2006). See also AFP, ‘Albania strongly condemns violent cartoon protests’, 6 February 2006. 63 Supra note 44. 61

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freedom of expression. The right to freedom of expression is a fundamental norm of international human rights law. It is recognized as such by Article 19 of the Universal Declaration of Human Rights,64 and is protected by Article 10 of the ECHR65 and Article 19 of the ICCPR.66 Denmark is a party to both the ECHR and the ICCPR. The European Court of Human Rights has consistently held that freedom of expression constitutes ‘one of the essential foundations of [a democratic] society, [and] one of the basic conditions for its progress and for the development of every man’.67 According to the Court, Article 10 of the ECHR applies not only to ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.68

This principle is of particular importance as far as the press is concerned. In its role as a ‘public watchdog’, it is the duty of the press to impart information and ideas on political issues and other matters of general interest in a manner consistent with its 64 GA Res. 217 A (III), 10 December 1948. Art. 19 of the Declaration reads as follows: ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’. 65 Art. 10, ECHR: ‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in condence, or for maintaining the authority and impartiality of the judiciary.’ 66 Art. 19, ICCPR: ‘1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.’ 67 Handyside v. UK (1979-80) 1 EHRR 737, at para. 49. 68 Handyside, supra note 67, at para. 49. See also Sunday Times v. UK (No 1) (1979-80) 2 EHRR 245, at para. 65; Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria (1995) 20 EHRR 56, at para. 36; Vogt v. Germany (1996) 21 EHRR 205, at para. 52; Radio France v. France (2005) 40 EHRR 29, at para. 32; Yankov v. Bulgaria (2005) 40 EHRR 36, at para. 129.

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obligations and responsibilities.69 Given that the press fulls an essential function in a democratic society, the Court has accepted that journalistic freedom permits it to have recourse to a certain degree of exaggeration, or even provocation.70 Similarly, in its communications concerning Article 19 of the ICCPR, the Human Rights Committee has repeatedly afrmed that ‘the right to freedom of expression is of paramount importance in any democratic society, and any restrictions on the exercise of this right must meet a strict test of justication’.71 The Committee has also underlined the importance of ‘a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion’.72 It is important to stress that the material scope of the right to freedom of expression is not subject to any express limitations under the ECHR or the ICCPR. In fact, whereas both instruments recognize that the exercise of this right may be subject to certain restrictions prescribed by law,73 neither the ECHR nor the ICCPR actually curtail its substantive scope. Accordingly, there can be little doubt that the publication of the cartoons depicting the Prophet Mohammed in the Jyllands-Posten and other newspapers does fall within the scope of the right to freedom of expression as protected by the ECHR and the ICCPR. Contrary to what several governments have suggested, the fact that the images are provocative does not, prima facie, exclude them from the scope of this right. Moreover, it is of no consequence that the images concerned are cartoons. The European Court of Human Rights has held on various occasions that Article 10 of the ECHR protects not only the substance of the information and ideas expressed, but also the form in which they are conveyed.74 Article 19 of the ICCPR expressly recognizes that freedom of expression may manifest itself in the form of art. The Human Rights 69

Lingens v. Austria (1986) 8 EHRR 407; Observer and Guardian v. UK (1992) 14 EHRR 153, at para. 59; Castells v. Spain (1992) 14 EHRR 445, at para. 43; Thorgeir Thorgeirson v. Iceland (1992) 14 EHRR 843, at para. 63; Bladet Tromso and Stensaas v. Norway (2000) 29 EHRR 125, at para. 78; Thoma v. Luxembourg (2003) 36 EHRR 21, at paras 44-45; Scharsach and News Verlagsgesellschaft v. Austria (2005) 40 EHRR 22, at para. 29. 70 Präger and Oberschlick v. Austria (1996) 21 EHRR 1, at para. 38; Thoma, supra note 69, at para. 46; Selistö v. Finland (2006) 42 EHRR 8, at para. 48. However, this does not include the dissemination of inaccurate information, see Radio France v. France (2005) 40 EHRR 29, at paras 38-39. 71 Park v. Republic of Korea, Human Rights Committee (HRC) Communication No 628/1995, at para. 10.3; Laptsevich v. Belarus, HRC Communication No 780/1997, at para. 8.2; Velichkin v. Belarus, HRC Communication No 1022/2001, at para. 7.3. 72 HCR General Comment No 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25), at para. 25; de Morais v. Angola, HRC Communication No 1128/2002, at para. 6.8. 73 Art. 10(2), ECHR and Art. 19(3), ICCPR. 74 Oberschlick v. Austria (1995) 19 EHRR 389, at para. 57; Jersild, supra note 37, at para. 31. This includes artistic freedom of expression, see Müller and Others v. Switzerland (1991) 13 EHRR 212, at para. 27.

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Committee has thus found that the painting of a picture is covered by the right to freedom of expression.75 The position under the ECHR and the ICCPR differs markedly from the approach taken in certain human rights instruments adopted by Muslim and Arab countries, in particular the Cairo Declaration on Human Rights in Islam (CDHRI) issued by the Nineteenth Islamic Conference of Foreign Ministers on 5 August 1990.76 The Cairo Declaration deals with the right to freedom of expression in Article 22. Pursuant to Article 22(a), ‘Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah’. The primacy of Sharia law is reinforced by Article 24, which provides that ‘All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari’ah’. Unlike the ECHR and the ICCPR, the Cairo Declaration clearly does restrict the material scope of the right to freedom of expression insofar as it recognizes this freedom only to the extent that it is compatible with the principles of Sharia law. Article 22(c) underlines this point when it declares information to be a vital necessity to Society, but adds that information ‘may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical values or disintegrate, corrupt or harm Society or weaken its faith’. Consequently, the publication of caricatures depicting the Prophet Mohammed seems to fall squarely outside the scope of the right to freedom of expression as understood in the Cairo Declaration. Even though Muslim countries consider the Cairo Declaration to be compatible with international human rights standards,77 its provisions are manifestly at odds with the ECHR and the ICCPR in their restrictive treatment, amongst other things,78 of the right to freedom of expression. Nevertheless, no legal conict actually arises between these instruments. Neither Denmark nor the vast majority of countries in which the cartoons were reprinted have expressed their consent to be bound by the Cairo 75

Shin v. Republic of Korea, HRC Communication No 926/2000, at para. 7.2. Cf. Kivenmaa v. Finland, HRC Communication No 412/1990, at paras 7.2 and 9.3. 76 Supra note 7. For a thoughtful discussion of international human rights law and Muslim adaptations of it, see A. E. Mayer, Islam and Human Rights: Tradition and Politics (4th edn, Westview Press: Colorado, 2006). 77 E.g. the preamble of the revised Arab Charter on Human Rights, reprinted in (2005) 12 International Human Rights Reports 893, reafrms the provisions of both the Cairo Declaration and the ICCPR. See M. Rishmawi, ‘The Revised Arab Charter on Human Rights: A Step Forward?’, (2005) 5 Human Rights Law Review 361. Arguably, this reects a broader attempt at masking the discrepancies between Muslim conceptions of human rights and universal human rights instruments by universalizing Islamic laws and precepts, as can be observed in Arts 1 and 10 of the Cairo Declaration. Cf. Resolution No. 1/33-LEG on the Coordination among Member States in the eld of Human Rights, Thirty-third Session of the Islamic Conference of Foreign Ministers, 21 June 2006. 78 See A. E. Mayer, ‘Universal versus Islamic Human Rights: A Clash of Cultures or Clash with a Construct’, (1993–1994) 15 Michigan Journal of International Law 307 at 327–350.

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Declaration, which has therefore no binding effect on them under international law.79 Besides, the Member States of the OIC do not regard the Cairo Declaration as a legal commitment; its purpose is merely to offer ‘general guidance’ in the eld of human rights.80 The fact that Article 25 provides that the ‘Islamic Shari’ah is the only source of reference for the explanation or clarication of any of the articles of this Declaration’ strongly suggests that the text is not an international agreement subject to the law of treaties at all. By contrast, it is worth noting that thirty-four of the forty-ve signatories of the Cairo Declaration are States Parties to the ICCPR. Consequently, whether or not the publication of the cartoons is compatible with the right to freedom of expression under international law does not depend on the provisions of the Cairo Declaration, but on those of the ECHR and the ICCPR. In addition to its lack of legal force, the specically Islamic nature of the Cairo Declaration also means that this instrument cannot lay claim to universal legitimacy. There is simply no reason why non-Muslims should accept the validity of its provisions solely on the basis that they are said to express ‘binding divine commandments’.81 Given that freedom of thought and freedom of expression are related concepts, it is appropriate to consider here, as an additional point, the Vatican’s claim that ‘[t]he right to thought … must not include the right to insult the religious feelings of the faithful’.82 If the right to freedom of thought does not include the right to conceive thoughts that in some way or another insult the religious feelings of others, as the Vatican seems to suggest, then obviously such thoughts cannot be covered by the right to freedom of expression either. Freedom of thought is protected by Article 9 of the ECHR and Article 18 of the ICCPR. The right to freedom of thought, unlike the right to express thoughts and beliefs, is absolute and not subject to any restrictions.83 Whereas the Human Rights Committee has adopted a broad interpretation of the scope of freedom of thought,84 the European Commission and Court of Human Rights have repeatedly declined to examine complaints concerning violations of this right on their own merits in favour of

79

This is not to say that the Cairo Declaration has no signicance under international law. It may play a role in the formation of customary international law, and it is invoked in the preamble of the OIC Covenant on the Rights of the Child in Islam, OIC/9-IGGE/HRI/2004/Rep.Final (however, the Covenant has not received any ratications so far and is not in force). 80 Resolution No 49/19-P of the Nineteenth Islamic Conference of Foreign Ministers on the Cairo Declaration on Human Rights in Islam, 5 August 1990. 81 Preamble, Cairo Declaration. 82 Supra note 54. 83 Kokkinakis v. Greece (1994) 17 EHRR 397, at para. 33; HRC General Comment No 22: The right to freedom of thought, conscience and religion (Art. 18) at para. 3. 84 See HRC General Comment No 22, supra note 83, at para. 1.

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dealing with such complaints under the heading of violations of freedom of expression.85 This suggests that the European Court of Human Rights may be unwilling to assess the cartoons published in the Jyllands-Posten from the perspective of both freedom of thought and freedom of expression, should these questions be raised before it. However, this does not alter the fact that, notwithstanding the Vatican’s position,86 everyone is perfectly free, as a matter of international human rights law, to reect privately on religion in offensive or insulting terms without any restrictions whatsoever. This freedom is also guaranteed by the rst paragraph of Article 19 of the ICCPR, which stipulates that everyone shall have the right ‘to hold opinions without interference’.87 Consequently, even if the publication of the caricatures was deemed to fall outside the right to freedom of expression, their creators and distributors were entitled to hold whatever ideas and opinions the images expressed.

Do the Cartoons Violate International Human Rights Standards? The exercise of the right to freedom of expression is not absolute: both the ECHR and the ICCPR recognize that freedom of expression carries with it special duties and responsibilities. Both instruments accordingly authorize their respective States Parties to impose certain restrictions on the exercise of this right in the interests, for instance, of national security and public order, or to protect the rights and reputation of others. In addition to these optional restrictions, certain human rights agreements also direct their States Parties to impose mandatory limits on the exercise of the right to freedom of expression in order to secure the enjoyment of other human rights and freedoms. For example, Article 20(2) of the ICCPR requires its States Parties to prohibit by law ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’. A similar obligation ows from Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination 85 E.g. Zana v. Turkey (1999) 27 EHRR 667, at para. 39; Incal v. Turkey (2000) 29 EHRR 449, at para. 60. Cf Concurring Opinion of Mr. Trechsel in G. v. Germany (1984) 6 EHRR CD 499, at 518. 86 It should be remembered, however, that the Holy See is a party to the International Convention on the Elimination of All Forms of Racial Discrimination, but not to the ECHR or the ICCPR. 87 HRC General Comment No 10: Freedom of expression (Art. 19) at para. 1. In Faurisson v. France (HRC Communication No 550/1993) the Committee found that the restrictions placed on the claimant’s freedom of expression by his criminal conviction for anti-semitic remarks was compatible with Art 19 ICCPR, but emphasised that the conviction ‘did not encroach upon his right to hold and express an opinion in general’.

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(CERD),88 which directs its States Parties to ‘declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the nancing thereof ’. Denmark is a State Party to the ICCPR and the CERD, and as such is under an obligation to comply with Article 20(2) of the ICCPR and Article 4(a) of the CERD. The OIC, the ISESCO and a large number of States have denounced the cartoons published in the Jyllands-Posten as racist and Islamophobic, and have claimed that they were designed to insult the religious feelings of Muslim believers around the world. This raises the question whether the publication of the images, while falling within the substantive scope of the right to freedom of expression, nevertheless contravenes Article 20(2) of the ICCPR and Article 4(a) of the CERD, and should therefore have been prohibited by law. Two issues in particular must be examined: did the cartoons incite or advocate racial and religious hatred, and did they infringe the right to freedom of religion? It is a remarkable feature of the cartoons row that those condemning the caricatures have largely done so without any attempt to distinguish between the twelve different images. In assessing the charges of racism and Islamophobia, it is nevertheless helpful to distinguish between, on the one hand, the publication of any images depicting the Prophet Mohammed contrary to Islamic tradition, and, on the other hand, the actual content of the caricatures printed in the Jyllands-Posten.

Incitement to Racial and Religious Hatred The publication of the cartoons has been described as a ‘heinous racist act’,89 ‘motivated to incite hatred and violence against Muslims’.90 The Jyllands-Posten has strongly rejected these accusations, maintaining that its aim was not to provoke or to insult Muslims, but to explore the issue of freedom of expression and self-censorship. Assuming that this was indeed the objective pursued by the paper, did the method of inquiry, that is the commissioning and dissemination of images depicting the Prophet Mohammed contrary to Islamic tradition, amount to incitement to racial discrimination prohibited by Article 20(2) of the ICCPR and Article 4(a) of the CERD? Even if one bears in mind that racist

88

International Convention on the Elimination of All Forms of Racial Discrimination, New York, 7 March 1966 (4 January 1969), 660 United Nations Treaty Series 195. 89 Supra note 48. 90 Supra note 47.

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violence and discrimination is sometimes expressed in religious terms,91 it is difcult to see how the answer could be in the afrmative. In contrast to certain other religious groups, Muslims are not an ethnically homogenous community. Islamic organizations and governments have themselves repeatedly underlined that the publication of the cartoons may have offended up to 1.2 billion Muslims around the world. This number includes individuals of virtually every race, colour, descent, and national or ethnic origin. Consequently, the act of publicly depicting the Prophet Mohammed, while potentially offensive to the religious feelings of some Muslims, cannot be considered in itself as an act directed against individuals or groups on the basis of their nationality, descent, colour, or racial or ethnic origin.92 The same holds true for the actual content of the twelve cartoons. The fact that some of the caricatures show individuals of non-European descent does not justify the conclusion that the images promote racial hatred or discrimination. Even in the case of those cartoons that could be interpreted to associate Islam with violence, the satirical emphasis is rmly on the religious motivations or social practices of those portrayed, and not on their race or ethnic origin. None of the images identies Muslims as a distinct group.93 The publication of the cartoons thus lacks the element of ‘distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin’ to constitute racial discrimination within the meaning of Article 1 of the CERD, and therefore is not caught by Article 4(a) of the CERD and Article 20(2) of the ICCPR on this ground. The present case must accordingly be distinguished from one of the leading cases on freedom of expression and racism under the ECHR, which incidentally also involved Denmark. In Jersild v. Denmark, the Danish courts convicted a journalist for having aided the dissemination of racist ideas by making a television documentary about the racist attitudes of certain youths in Copenhagen.94 The European Court of Human Rights found that the applicant’s criminal conviction constituted an unjustied interference with his right to freedom of expression, as the Danish courts did not establish convincingly that the conviction was ‘necessary in a democratic society’ as required by Article 10(2) of the ECHR. In reaching this conclusion, the Court took into account the manner in which the interview was prepared, its contents, the context in which it was broadcast,

91

House of Lords Select Committee on Religious Offences in England and Wales, Report HL 95-I (Session 2002–03), at para. 15. 92 In R v. DPP (1998) unreported, Lexis CO/3019/98, the Crown Prosecution Service concluded that Muslims are not a group dened by ethnic or national origins against whom racial hatred could be stirred up within the meaning of Secs 17 and 19 of the Public Order Act 1986. Cf. Mandla v. Dowell Lee [1983] 2 AC 548, at 562. 93 See Decision on Possible Criminal Proceedings, supra note 38, at 9. 94 Jersild, supra note 37.

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and its purpose.95 Even though the Court considered it relevant that the applicant has taken the initiative in preparing the interview and knew that racist remarks were likely to be made, it held that News reporting based on interviews, whether edited or not, constitutes one of the most important means whereby the press is able to play its vital role of ‘public watchdog.’ The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so.96

The case of the Jyllands-Posten differs signicantly from Jersild on this point. Whereas the journalist in Jersild merely documented the racist views of others, the Jyllands-Posten commissioned the offending images itself, and as such is responsible not only for their dissemination, but also for their very existence. The paper therefore cannot claim to have dissociated itself from the cartoons in the same way as the applicant in Jersild dissociated himself from the views of his interviewees.97 However, in contrast to the Jersild case where the racist nature of the remarks made during the interview was not in question, none of the twelve cartoons printed in the Jyllands-Posten actually promote racial hatred or discrimination. In addition to the charge of racism, it has also been claimed that in an atmosphere of general Islamophobia and negative stereotyping of Muslims, the invitation to depict Mohammed ‘could only have led to ill-informed and malicious stereotyping of the Prophet’.98 There is no reason why a decision taken by a Western newspaper to commission cartoons depicting the Prophet Mohammed could only produce Islamophobic images. In fact, some of the pictures published in the Jyllands-Posten refute this presumption of inevitable Islamophobia. For instance, the image showing Mohammed walking in the desert at sunset lacks all satirical pungency, and is clearly not Islamophobic in its portrayal of the Prophet. It is a simple watercolour of the type one would expect to nd in a children’s book. Bearing in mind that certain branches of Islam accept gural representation, the dissemination of images depicting the Prophet Mohammed cannot automatically be considered an Islamophobic act. Consequently, whether or not the publication of the cartoons amounted to the 95

Ibid., at para. 31. Ibid., at para. 35. Footnote omitted. 97 At the same time, it must be remembered that the paper specically asked the cartoonist to draw Mohammed ‘as they see him’. It would therefore go too far to attribute the message conveyed by the individual cartoons to the Jyllands-Posten. 98 Supra note 47. 96

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‘advocacy of … religious hatred that constitutes incitement to discrimination, hostility or violence’ contrary to Article 20(2) of the ICCPR must be determined with reference to the actual circumstances of the case. While the Human Rights Committee has not expressly dened the concept of ‘religious hatred’ under the ICCPR, its case-law suggests that what is involved is the advocacy of hatred against certain persons or a community as a whole on the basis of their religion.99 Such hatred, which can be described as an intense form of detestation going beyond mere contempt, must also constitute incitement to discrimination, hostility or violence to be caught by Article 20(2) of the ICCPR. In the light of these criteria, it is difcult to see how the Jyllands-Posten can be said to have advocated religious hatred in contravention of the ICCPR. According to Flemming Rose’s article that accompanied the cartoons, the paper’s objective was to openly reject artistic and journalistic self-censorship on matters pertaining to Islam. The manner in which it pursued this objective—by commissioning and publishing images showing the Prophet contrary to Islamic tradition—did not amount to the advocacy of hatred directed against certain persons or a group of individuals identiable on the basis of their religion. First, the Jyllands-Posten addressed only those Muslims who reject the modern, secular society. Neither does this group include all adherents of Islam, nor are its members identiable on the grounds of their religion alone.100 Second, even though the publication of the cartoons was undoubtedly intended to be provocative, this clearly did not reach the level of intensity required to qualify as hatred,101 nor was it knowingly calculated to expose Muslims to hatred. Third, nothing suggests that the Jyllands-Posten sought to incite discrimination, hostility or violence against Muslims as individuals or as a group. In fact, by arguing that Muslims should be ‘prepared to face scorn, mockery and ridicule’ in a secular and democratic society, the paper in a sense made the case for the equal treatment of Muslims.102 As regards the actual content of the images, none of the twelve cartoons advocate religious hatred within the meaning of Article 20(2) of the ICCPR. Religion does not play a central role in the majority of the drawings, most of which clearly do not express or call for any form of hatred against any persons at all. While some caricatures may be understood to portray Mohammed or certain Muslims as violent individuals,103 none of the images concerned seeks to 99

See JRT and the WG Party v. Canada, HRC Communication No 104/1981, at paras 2.4 and 8(b); Faurisson, supra note 87, at paras 9.6 and 9.7; Ross v. Canada, HRC Communication No 736/1997, at para. 11.5. 100 Decision on Possible Criminal Proceedings, supra note 38, at 9. 101 Cf. the offensive pronouncements giving rise to the proceedings in the cases of JRT and the WG Party, supra note 99; Faurisson, supra note 87; Ross v. Canada, Ross, supra note 99. 102 For a denition of discrimination based on religion, see Art. 2(2) of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, GA Res 36/55 (1981). 103 Cf. Decision on Possible Criminal Proceedings, supra note 38, at 7.

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incite discrimination, hostility or violence in response to this portrayal. Accordingly, the cartoons do not contravene Article 20(2) of the ICCPR on this ground either.

The Right to Freedom of Religion Whereas the Jyllands-Posten did not incite racial or religious hatred in publishing the twelve offending cartoons, it may nevertheless have infringed the right to freedom of religion protected by Article 9 of the ECHR104 and Article 18 of the ICCPR.105 According to the European Court of Human Rights, freedom of religion is ‘one of the most vital elements that go to make up the identity of believers and of their conception of life’.106 In the case of the Otto-Preminger-Institute, which concerned the seizure by the Austrian authorities of a lm ridiculing the Roman Catholic religion, the Court pointed out that those who exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism: They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines. Indeed, in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them.107 104

Art. 9, ECHR: ‘1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ 105 Art. 18, ICCPR: ‘1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.’ 106 Kokkinakis, supra note 83, at para. 31; Buscarini v. San Marino (2000) 30 EHRR 208, at para. 34; Sahin v. Turkey (2005) 41 EHRR 8, at para. 66. 107 Otto-Preminger Institute v. Austria (1995) 19 EHRR 34, at para. 47.

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The Court has thus recognized that the ECHR imposes a duty on the Contracting States to restrict the exercise of freedom of expression under certain circumstances in order to ensure the peaceful enjoyment of the right to freedom of religion.108 However, the Otto-Preminger-Institute and other relevant cases have turned on the question whether the interference with the applicants’ freedom of expression satised the conditions laid down in Article 10(2) of the ECHR, not whether the Contracting States concerned had failed to impose such restrictions in the rst place to protect the rights of others.109 Consequently, it is not entirely clear under what circumstances exactly a Contracting State is obliged, rather than simply entitled, under the ECHR to restrict the exercise of freedom of expression in favour of the right to freedom of religion. Such an obligation certainly exists in what the Court called ‘extreme cases’, that is where the right to hold and manifest religious beliefs is effectively denied or at least gravely impaired. In addition, in the Otto-Preminger-Institute case the Court held that, in the context of religious beliefs, one may legitimately include among the duties and responsibilities mentioned in Article 10(2) of the ECHR an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.110

In subsequent cases, the Court has elaborated on the scope of this obligation by adding that it involves a duty to avoid, as far as possible, expressions that are ‘gratuitously offensive to others and profane’ with regard to objects of religious veneration.111 Clearly, a complete and absolute duty to refrain from profanity would atly contradict the Court’s assessment that believers ‘must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith’.112 Rather, profanatory expressions must be avoided whenever they are gratuitously offensive to others and thus an infringement on their rights, and even then only ‘as far as possible’. This being so, the Court has accepted that ‘as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent improper attacks 108

Cf. Dubowska and Skup v. Poland (1997) 24 EHRR CD 75; Kubalska v. Poland (App. No 35579/97). See Wingrove v. UK (1997) 24 EHRR 1; Murphy v. Ireland (2004) 38 EHRR 13. See Mahoney, ‘Universality versus Subsidiarity in the Strasbourg Case Law on Free Speech: Explaining Some recent Judgments’, (1997) 4 European Human Rights Law Review 364. 110 Otto-Preminger Institute, supra note 107, at para. 49. 111 Wingrove, supra note 109, at para. 52; Murphy, supra note 109, at para. 65; _.A. v. Turkey (App. No 42571/98), at para. 24 (emphasis added). 112 Otto-Preminger Institute, supra note 107, at para. 47; afrmed by Dubowska, supra note 108. 109

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on objects of religious veneration’.113 Thus, in the case of _.A. v. Turkey, the Court was asked to decide whether the criminal conviction by the Turkish authorities of the owner of a publishing house for printing a blasphemous novel infringed his right to freedom of expression.114 Applying its usual test of whether the interference with the applicant’s freedom of expression corresponded to a ‘pressing social need’ and whether it was ‘proportionate to the legitimate aim pursued’, the Court found that the relevant passages of the book did not just offend, shock, or provoke, but also constituted an abusive attack on the Prophet of Islam. The Court noted that while ‘there is a certain tolerance of criticism of religious doctrine within Turkish society … believers may legitimately feel themselves to be the object of unwarranted and offensive attacks’ through the passages in question.115 Accordingly, it found that the applicant’s conviction for blasphemy against ‘God, the Religion, the Prophet and the Holy Book’ under the Turkish Criminal Code did not infringe his right to freedom of expression. The dissemination of images depicting the Prophet Mohammed in deance of Islamic tradition does not in itself constitute an ‘extreme case’ in which the rights recognized in Article 9 of the ECHR were effectively denied. In 1994, a Polish newspaper carried on its front page an image showing the Czestochowa Madonna and Child wearing gas masks. Recalling the Otto-Preminger-Institute case, the European Commission of Human Rights found that the publication of the image did not constitute an infringement of Article 9, as it did not inhibit the applicants from exercising their freedom to hold and express their religious beliefs.116 The Commission attached considerable weight to the fact that criminal proceedings initiated against the paper’s editor on suspicion of committing the offence of publicly insulting religious feelings were discontinued after prosecutors found that the publication of the image was not aimed at insulting or debasing an object of religious worship. Similarly, in the present case the publication of cartoons depicting the Prophet Mohammed did not as such inhibit Muslims from exercising their freedom to hold and manifest religious beliefs. It should be recalled that not all Muslims comply with the prohibition to depict human gures, including that of the Prophet. The Danish Director of Public Prosecutions therefore concluded that it could not be ‘assumed that a drawing of the Prophet Muhammed in general will be contrary to the religious doctrines and acts of worship of the religion as practiced today’.117 Moreover, as in the Polish case, here 113

Otto-Preminger Institute, supra note 107, at para. 49. _.A. v. Turkey, supra note 111. 115 Ibid., at para. 29. 116 Dubowska and Kubalska, supra note 108. Cf. Choudhury v. UK (App. No 17439/90); Universelles Leben v. Germany (App No 29745/96). 117 Decision on Possible Criminal Proceedings, supra note 38, at 6. 114

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too the intention in publishing the images was not to insult or debase an object of religious reverence. For these reasons, the decision to commission and print images showing the Prophet Mohammed did not violate Article 9 of the ECHR. By contrast, it is less straightforward whether or not the substantive content of the twelve cartoons has infringed the right to freedom of religion. In exercising the right to freedom of expression, did the Jyllands-Posten comply with its duty ‘to avoid as far as possible expressions that are gratuitously offensive to others and profane’? Whether or not the cartoons are ‘gratuitously offensive’ does not so much depend on the degree of offence caused by each individual image in the abstract, but on whether the offence inicted was proportionate to the legitimate aim it pursued, if any, and was not unnecessarily abusive. In particular, the case-law of the European Court of Human Rights suggests that material is considered ‘gratuitously offensive’ when it does not ‘contribute to any form of public debate capable of furthering progress in human affairs.’118 Thus, the Court has held that recourse to offensive language by a journalist infringed the reputation and rights of a former public ofcial because it related to private matters, and was not necessary in order to contribute to a public debate.119 The publication of the twelve cartoons was intended as a ‘contribution to the debate about self-censorship amongst journalists, authors, and artists’. This is plainly a matter of public concern. In a democratic society such as the Danish, the press is expected to initiate and participate in such discussions in its role as a ‘public watchdog’. Although questions have been raised about the sincerity of the Jyllands-Posten’s aims,120 the paper’s self-professed objective was undoubtedly a legitimate one. Nevertheless, it may be questioned whether the publication of the most offensive images was in fact necessary for this purpose. Nine of the twelve cartoons images may be considered provocative without being overly offensive to the religious beliefs of Muslims. In any event, they are clearly not ‘gratuitously offensive’, as they are in no sense abusive. The remaining three images may be interpreted—some more convincingly than others—to associate Islam and the Prophet Mohammed with violence or repression. The rst of these, which shows Mohammed standing in front of two women wearing a niq`b with only their eyes visible, while his eyes are covered by a black bar, may be understood as a critical comment on the subordinate role accorded to women in some Muslim societies; however, this is not abusive. The second cartoon, which portrays Mohammed greeting 118

Otto-Preminger Institute, supra note 107, at para. 49; Tammer v. Estonia (App. No 41205/98) Decision as to admissibility; Gündüz v. Turkey (2005) 41 EHRR 5, at para. 37. 119 Tammer v. Estonia (2003) 37 EHRR 43, at paras 66–68. Cf. Von Hannover v. Germany (2005) 40 EHRR 1, at para. 60. See also Constantinescu v. Romania (2001) 33 EHRR 33. 120 See P. Hervik, ‘The Predictable Responses to the Danish Cartoons’, (2006) 2 Global Media and Communication 225.

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a line of suicide-bombers in heaven, is certainly provocative, but does not identify Islam or Muslims in general with terrorism. Nevertheless, it may be questioned to what extent this picture contributes to a debate on self-censorship. The third image, which shows Mohammed wearing a turban in the shape of a bomb with the Islamic creed written on it, is by far the most difcult of the twelve. While this cartoon can be read as a critique of the ‘misuse of the teachings of Islam’ by extremists as the OSCE Representative on Freedom of the Media has suggested,121 it may also be seen to associate Islam as a whole with violence and terrorism. The artist responsible for the cartoon has denied that his drawing was directed against Islam as such: Some interpretations of it are wrong. The general view among Muslims is that it relates to Islam as a whole. That is not the case. It relates to certain fundamentalist views, which of course are not shared by all Muslims. But the fuel behind the terrorists’ actions is supplied by interpretations of Islam. I think that conclusion is inescapable. That does not mean that all Muslims are responsible for terror. It is a matter of proving a connection with the source of the spiritual fuel.122

While there is no reason to cast doubts on this explanation, it cannot be denied that the image does lend itself to different interpretations, and has caused considerable offence. Even if one accepts that extremists may rely on a fundamentalist interpretation of Islam to support their goals, the cartoon does not clearly distinguish between extremist interpretations of Islam and Islam as such. Because of this ambiguity, the image may have caused unnecessary insult, and may therefore be deemed ‘gratuitously offensive’. In assessing the legality of the second and third image, the need to protect the right to freedom of religion of Muslims has to be weighed in relation to the duty of the Jyllands-Posten to impart information and ideas on a matter of public concern.123 The weighing of these conicting interests cannot be performed in the abstract. The European Court of Human Rights has repeatedly underlined both the vital role that the right to freely hold and manifest religious beliefs plays in the life of believers as well as the essential function that the press fulls in a democratic society. Between the two opposite poles of clearly protected and clearly prohibited speech lies an area where the Contracting States enjoy a wide margin of appreciation to determine the legality or otherwise of a particular expression, subject to the conditions listed in Article 121

Regular Report to the Permanent Council, 16 February 2006, at 3. See also M. Haraszti, ‘The “Cartoon” Controversy: The Need for Respect in Freedom’, (2006) 4 Asia Europe Journal 13. 122 J. Brinch, ‘The Cartoonist: The Reason for the Bomb in the Turban’, 28 February 2006, <www.jp.dk/ udland/artikel:aid=3584442:d=11328/> (last visited in August 2006). 123 Cf. Tammer, supra note 119, at para. 65.

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10(2) of the ECHR and the supervision of the Court.124 In the absence of a uniform European conception of religious values, the Court has left it to the State authorities to decide in the rst instance whether a ‘pressing social need’ requires them to place restrictions on the exercise of freedom of expression in order to ensure the peaceful enjoyment of the right to freedom of religion.125 This assessment depends on social, political, cultural and other criteria that differ signicantly from State to State: what causes offence in one country may be quite acceptable in another. The question whether or not the publication of the most provocative cartoons was ‘gratuitously offensive’ falls within this margin of appreciation. Consequently, while the Danish authorities may have been entitled to prohibit some of the most controversial images published in the Jyllands-Posten if they considered this necessary to protect the right to freedom of religion of others, the ECHR does not actually impose an obligation on them to do so. While the jurisprudence of the Human Rights Committee on Article 18 of the ICCPR is less developed than the case-law of the European Court of Human Rights on Article 9 of the ECHR, the similarity of these two provisions suggests that no such obligation arises under the ICCPR either.

The Defamation of Islam In addition to condemning the Jyllands-Posten for offending the religious feelings of Muslims, the OIC, the ISESCO and various other international actors have also protested against what they described as the defamation of Islam. For several years now, the question of the defamation of religions has been a subject of contention between Muslim and Western States. At the fifty-fifth session of the UN Commission on Human Rights held in 1999, Pakistan introduced, on behalf of the Member States of the OIC and under the agenda item on racism, a draft resolution concerning the defamation of Islam. 126 According to the Pakistani representative, there was a ‘tendency in some countries and in the international media to portray Islam as a religion hostile to human rights, threatening to the Western world and associated with terrorism and violence’.127 Amongst other things, the draft resolution expressed ‘its concern at the use of the print, 124

See Mahoney, supra note 109. Cf. Sweeney ‘Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era’, (2005) 54 International and Comparative Law Quarterly 459. 125 Wingrove, supra note 109, at para. 57; Murphy, supra note 109, at paras 65–68; _.A. v. Turkey, supra note 111, at paras 26–27. 126 UN Doc. E/CN.4/1999/L.40, 20 April 1999. 127 UN Doc. E/CN.4/1999/SR.61, 19 October 1999, at 2.

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audiovisual or electronic media or any other means to spread intolerance against Islam’, and urged all States to take all necessary measures to combat hatred and discrimination motivated by religious intolerance.128 The Member States of the European Union, supported by Canada and other European countries, argued that the overall design of the draft was not balanced as it ‘referred exclusively to the negative stereotyping of Islam’, and therefore suggested certain amendments in order to ‘broaden the issue and deal equally with all religions’.129 In response, Pakistan submitted various sub-amendments which effectively neutralized the amendments proposed by the EU Member States.130 A compromise was eventually found, and the Commission on Human Rights adopted the text as Resolution 1999/82 (Defamation of Religions) without a vote. Even though the resolution was ostensibly formulated in general terms, it continued to pay special attention to Islam.131 In a statement issued on behalf of the Member States of the EU and their co-sponsors, the representative of Germany therefore stressed that the consensus reached on the text should not ‘hide the fact that a high degree of uncertainty remained as to the expediency of the Commission’s continuing to deal with the issue in that way and in that context’.132 The entire process repeated itself one year later at the fty-sixth session of the Commission on Human Rights. Pakistan submitted, on behalf of the Member States of the OIC, a draft resolution concerning the defamation of religions.133 Though formulated in general terms, the text was heavily biased in favour of Islam. The Member States of the EU, supported by others, proposed certain amendments to broaden its scope,134 but these were met with counter-amendments that restored its original emphasis.135 An agreement was nevertheless reached on a compromise text, adopted by the Commission on Human Rights as Resolution 2000/84 (Defamation of Religions). The representative of Portugal, speaking on behalf of the Member States of the EU, declared that the EU supported the consensus based on the 128

Operative para. 3. UN Doc. E/CN.4/1999/SR.61, 19 October 1999, at 2. See UN Doc. E/CN.4/1999/L.90, 22 April 1999. 130 UN Doc. E/CN.4/1999/L.104, 28 April 1999. 131 Indeed, despite the change in title from ‘Defamation of Islam’ to ‘Defamation of Religions’, Muslim countries continued to view Resolution 1999/82 and its successors as part of their initiative to combat the ‘defamation of Islam’. See Resolution No. 70/27-P on the Defamation of Islam, Twenty-seventh Session of the Islamic Conference of Foreign Ministers, 30 June 2000. 132 UN Doc. E/CN.4/1999/SR.62, 17 November 1999, at 3. 133 UN Doc. E/CN.4/2000/L.6, 5 April 2000. 134 UN Doc. E/CN.4/2000/L.18, 10 April 2000. 135 UN Doc. E/CN.4/2000/L.96, 20 April 2000. 129

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understanding that the sponsors of the resolution would not to raise the subject again in the Commission.136 Despite this understanding, Pakistan once more introduced a draft resolution on the defamation of religions during the following year.137 This time, however, Western countries called for a recorded vote. While the Pakistani representative argued that the defamation of religions was a contemporary form of racism, the Member States of the EU rejected this position.138 They objected to the draft because it could facilitate censorship on religious matters and because it emphasized the protection of religion rather than the human rights of individual believers. Canada and Norway criticised the text for confusing racism and religious intolerance.139 Following a formal vote, the draft was nevertheless adopted by 28 votes against 15, with 9 abstentions.140 Since then, the dispute between Muslim and Western States over the defamation of religions has lead to something of a stalemate. The Member States of the OIC continued to table draft resolutions on the subject in successive sessions of the Commission on Human Rights,141 while the Member States of the EU and other countries sharing their position continued to vote against them.142 The arguments employed on both sides remained essentially the same, suggesting that neither group was willing to compromise. In 2005, the question was placed on the agenda of the UN General Assembly, which lead to the adoption of Resolution 60/150 entitled ‘Combating defamation of religions’ by 101 votes against 53, with 20 abstentions.143 The text for the most part followed that of the earlier resolutions adopted by the Commission on Human Rights. Even though Resolution 60/150 has attracted considerable support in the General Assembly, a substantial number of States has either rejected it or abstained from voting on the draft. Clearly, Muslim and Western positions were not about to converge. However, the publication of the Mohammed cartoons in the Jyllands-Posten has breathed new life into the debate over the defamation of religions. On the one hand, Muslim countries and organizations have held up the images as a prime example of 136

See also the representative of India, ibid., at 15. UN Doc. E/CN.4/2001/L.7/Rev.1, 12 April 2001. 138 UN Doc. E/CN.4/2001/SR.61, 4 December 2001, at 2–3. 139 Ibid., at 3. 140 In addition to its sponsors, several Latin American and Asian States, as well as China and the Russian Federation, voted in favour of the draft. Those voting against included European States together with Canada, Japan and the USA. India chose to abstain. 141 UN Docs E/CN.4/2002/L.9, 3 April 2002; E/CN.4/2003/L.16, 8 April 2003; E/CN.4/2004/L.5, 24 March 2004; E/CN.4/2005/L.12, 7 April 2005. 142 UN Docs E/CN.4/2002/SR.39, 19 April 2002, at 6-8; E/CN.4/2003/SR.47, 25 April 2003, at 19-21; E/CN.4/2004/SR.45, 20 April 2004, at 19-21. 143 UN. Doc. A/RES/60/251, 3 April 2006. See UN Doc. A/60/PV.64, at 11. 137

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the defamation of Islam and Islamophobia in the West. On the other hand, they relied on Resolution 60/150 to argue that the caricatures violated international standards and to call for the adoption of new legal instruments prohibiting the vilication of religions.144 For example, in February 2006, the Secretary General of the OIC presented the EU with a set of ve legal and political proposal aimed at preventing the recurrence of a similar crisis in the future. These included the following: 2. to make joint efforts by the EU and the OIC for the adoption of a Resolution by the United Nations on the lines of existing UN [General Assembly] Resolution 60/150 (Combating defamation of religions) which should prohibit defamation of all Prophets and faiths; 5. to include operative provisions prohibiting blasphemy and defamation as well as incitement to hatred in the text of the resolution on the Statute of the Human Rights Council presently being considered at the UN.145

The EU’s response to these proposals has been cautious. Certainly, Western States have not supported the inclusion of a reference to the defamation of religions or the prohibition of blasphemy in the founding document of the UN Human Rights Council. Instead, the seventh preambular paragraph of General Assembly Resolution 60/251 establishing the Council refers simply to the important role that States, regional organizations, non-governmental organizations, religious bodies and the media have to play in ‘respect for and freedom of religion and belief ’. This balanced formula treats freedom of religion and freedom of non-religious beliefs equally.146 However, other responses to the cartoons row were not as guarded, and have been interpreted by Muslim organizations to support their position on the defamation of religions. Referring to his joint statement with the UN Secretary-General and the EU’s High Representative for the CFSP of 7 February 2006,147 the OIC Secretary 144

See supra notes 46 to 48, and the accompanying text. Press Release 13 Feb 2006, <www.oic-oci.org/press/english/2006/February%202006/solana-visit.htm> (last visited in August 2006). These proposals were approved unanimously by the Permanent Representatives of the Member States of the OIC, see Statement of the OIC ambassadorial level extraordinary plenary meeting 14 Feb 2006, <www.oic-oci.org/press/english/2006/February%202006/ambass-meeting.htm> (last visited in August 2006). 146 This did not prevent Muslim States from sponsoring a resolution at the rst session of the Human Rights Council which requests two Special Rapporteurs of the Commission on Human Rights and the UN High Commissioner for Human Rights to report on ‘the increasing trend of defamation of religions, incitement to racial and religious hatred and its recent manifestations’. See UN Doc. A/HRC/1/L.16, 29 June 2006. The text was adopted by a recorded vote of 33 to 12, with 1 abstention. See UN Doc. A/HRC/1/L.10/Add.1, 5 July 2006, at 23. 147 See supra note 58. 145

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General declared that This joint statement and [Resolution 60/150 on ‘Combating the defamation of religions’] provide the legal ground for condemnation of acts of the European newspapers and for international legitimacy of the Islamic position towards it. This is a very important achievement and we must seize the opportunity to preserve the momentum for joint action and to prevent a recurrence of this despicable act. To combat Islamophobia in the West we must work towards the adoption of relevant legislations.148

This interpretation of Resolution 60/150 and the joint statement cannot be sustained. General Assembly Resolution 60/150 is not a legally binding instrument, nor do its provisions codify existing norms of customary international law.149 Leaving aside the question of State practice, the fact that the text was adopted against a very substantial number of negative votes and abstentions means that it does not establish the necessary opinio juris for the existence of a customary rule of international law prohibiting the defamation of religions.150 The voting record in both the Commission on Human Rights and the General Assembly demonstrates that Resolution 60/150 does not express the political or legal consensus of the international community on the subject matter.151 Besides, calls for the adoption of new legal instruments prohibiting the defamation of religions seriously undermine the argument that Resolution 60/150 and its predecessors already express binding norms. Consequently, Muslim countries and organizations cannot convincingly rely on Resolution 60/150 as the ‘legal ground’ for condemning the publication of the cartoons as an act defaming Islam. The various declarations made by European countries must be seen in this context: none of the relevant documents suggests that European States have changed their position on the defamation of religions. The fact that several statements refer to the need to ‘respect the beliefs and tenets of all religions’ does not indicate a change of course either. The word ‘respect’ does not mean obey; ‘respect’ for religious beliefs does not imply a ban on opinions contrary to some or all religious beliefs along the lines, for example, of Article 22(a) of the Cairo Declaration on Human Rights in Islam. In any event, it would be utterly absurd if the joint statement of 7 February 2006 was meant to suggest

148

A Message of the OIC Secretary General to the Muslim World, 9 February 2006, <www.oic-oci.org/ press/english/2006/February%202006/to-allmuslim.htm> (last visited in August 2006). 149 Cf. Legality of the Use or Threat of Nuclear Weapons, ICJ Reports (1996) 226, at para. 71. 150 Generally, see M. D. Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’, (2005) 16 European Journal of International Law 879. 151 In one of the two cases where the Member States of the EU did vote in favour of the draft resolution tabled by Muslim countries, they expressly declared that they did not attach any legal meaning to the term ‘defamation’. See UN Doc. E/CN.4/1999/SR.62, 17 November 1999, at 3.

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that one should obey the religious doctrines and practices of all religions.152 It is very unlikely that this is what Muslim organizations had mind. The prohibition of the defamation of religions has no legal basis in international law. The images published in the Jyllands-Posten accordingly do not violate any such alleged rule. Of course, this does not exclude the possibility that a rule to this effect may still emerge in the future. However, such a development would raise several questions. Are religions really in need of protection under international law? It may be doubted whether additional safeguards over and beyond the protection afforded by international human rights instruments to the religious beliefs and practices of the individual adherents of a religion are in fact required. In practice, some countries may rely on the separate legal protection accorded to religions as such to curtail universal human rights, in particular the right to freedom of expression. As the Member States of the EU and other countries have pointed out, the prohibition of the defamation of religions could thus facilitate religious censorship. Also, the efforts made by Muslim countries and organizations to anchor the concept of the defamation of religions in international law are in some respects one-sided. For example, not only are the relevant resolutions biased in favour of Islam, but none of them afrms the right to freely choose one’s religion.153 For these and related reasons, the development of an international norm prohibiting the defamation of religions should be resisted.

Conclusion The preceding analysis has shown that the international row sparked by the publication of the twelve cartoons depicting the Prophet Mohammed in the Jyllands-Posten, although deeply political in its nature, has given rise to signicant legal disagreements. However, a closer analysis reveals that some of the specic allegations made against the paper lack a proper legal foundation. Neither the decision to commission images depicting the Prophet in deance of Islamic tradition, nor the actual content of the individual cartoons can be regarded as racist within the meaning of the relevant international human rights instruments. The UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and others are therefore wrong to suggest that the Jyllands-Posten is guilty of inciting racial 152

Moreover, this could be deemed incompatible with the right of every individual not to hold any religious beliefs at all. See Buscarini, supra note 106, at para. 34; HRC General Comment No 22, supra note 83, at para. 2. 153 Cf. Resolution No. 26/33-DW on Eliminating Hatred and Prejudice against Islam, 21 June 2006, Thirty-third Session of the Islamic Conference of Foreign Ministers.

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hatred. The same applies to the charge of religious hatred: neither the publication of images depicting the Prophet Mohammed, nor the actual content of the twelve cartoons can be said to violate international human rights law on this ground. By contrast, the situation is more complex as regards the compatibility of the cartoons with the right to freedom of religion. Whereas religious believers ‘must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith’,154 there are in fact limits to the level of ‘scorn, mockery and ridicule’—to use the words of the Jyllands-Posten’s cultural editor—they must be prepared to face in a democratic society. While the publication of the images has not effectively denied or seriously impaired the exercise of the right to freedom of religion, some of the more controversial pictures may nevertheless be judged ‘gratuitously offensive’ to the religious beliefs of Muslims in accordance with the applicable case-law of the European Court of Human Rights. This means that the Danish authorities and those of other countries where the cartoons have been published may be entitled to prohibit their dissemination by law, yet it does not imply that the ECHR actually imposes a uniform legal obligation on them to do so. This is so because the assessment of whether or not the individual cartoons are ‘gratuitously offensive’ falls within the margin of appreciation of the State authorities concerned. As the Turkish and Spanish Prime Ministers have highlighted, ‘the publication of these caricatures may be perfectly legal, but it is not indifferent’.155 There may be good reasons to exercise the right to freedom of expression with more caution and consideration than the Jyllands-Posten has done in this case. At the same time, it should not go unnoticed how some Muslim States and organizations have used the row in an attempt to further a more restrictive understanding of the freedom of expression and gain international acceptance for the concept of the defamation of religions. While it cannot be doubted that the caricatures have caused real indignation among Muslim believers around the world, the Danish cartoons row has to some extent also become a political battleground between universal conceptions of human rights and more restrictive interpretations of them as found, for example, in the Cairo Declaration on Human Rights in Islam. Care should therefore be taken that, in trying to prevent similar crises in the future, perfectly legitimate calls for the respect of religious beliefs are not wrongly interpreted in some quarters as an endorsement of the concept of ‘defamation of religions’ and a more restrictive understanding of the right to freedom of expression. 154

Otto-Preminger Institute, supra note 107. R. T. Erdogan and J. L. R. Zapatero, ‘A call for respect and calm’, International Herald Tribune, 5 February 2006. 155

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THE LIMITS OF INTERNATIONAL LAW. By Jack L. Goldsmith and Eric A. Posner. Oxford University Press, 2005. 270 pages. ISBN 0-19-516839-9. Imagine a world inhabited by only two states, both of them monolithic in that they have clear and xed foreign policy preferences; a world in which international organizations either do not exist or play no relevant role; a world in which there are no terrorists; a world without minorities and without national liberation movements vying for self-determination; a world without political divisions (other than between those two states); a world without multinational corporations with international (foreign policy) interests of their own. This magical wonder world is the world of Jack Goldsmith and Eric Posner, law professors at Harvard and Chicago, respectively, and authors of the hugely disappointing book under review, provocatively discussing what they hold to be the limits of international law. I Goldsmith and Posner’s starting point is fair enough. To them, mainstream international law comes with a number of aws. Thus, international lawyers tend to be overly generous in recognizing the existence of proposed rules; states do not always act out of respect for international law; the contents of international legal norms is often uncertain; enforcement is mostly absent or toothless, and even the status of norms, in particular customary international law, is often uncertain. There is nothing wrong, really, with Goldsmith and Posner’s critique of mainstream international law. There is, however, also nothing very original about Goldsmith and Posner’s critique of mainstream international law: much the same points have been made by critical scholars for the last two decades or so. Not that this is recognizable from their work though: the classics of critical scholarship are missing from their bibliography, as are many of the most inuential jurisprudential works. These absences give The Limits of International Law a peculiar parochial undertone: Goldsmith and Posner are cheerfully re-inventing the wheel, blissfully unaware of what has been going on elsewhere. Also missing, and adding to the parochialism, is non-Anglo-American scholarship: surely work by European authors such as Bruno Simma or Emmanuel Decaux on reciprocity (to name just one example) could have been useful given the authors’ general point of departure, and perhaps, given their afliation with scholarship in international relations, so too could the work of the so-called English School.1 Even US authors (or US-based authors) are ignored if their message does not t in with Goldsmith and Posner’s agenda: Stanley Hoffmann’s classic essay on international law and systems theory, for example, explored reciprocity long before it became fashionable and long before Law & Economics (‘Law as Economics’, as someone once quipped) became a topic in law

1 A useful discussion is Tim Dunne, Inventing International Society: A History of the English School (MacMillan: London, 1998).

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school curricula.2 And most curiously, even the politically sensitive scholarship of the New Haven School (apologists for earlier US dominance) is absent: no MacDougal, no Lasswell, no Reisman. Goldsmith and Posner inhabit an academic universe made up of those who think and write like them; those who think differently are of no use, except, on occasion, as foil for dismissal. What Goldsmith and Posner propose to substitute for mainstream international legal scholarship is hard science: the hard science of rational choice theory, with some game theory and law and economics thrown in for good measure. To their mind, much of international law can be explained with the help of rational choice theory: instead of acting out of respect for the law, states simply follow their interests. In doing so, the law may contingently be respected, but this is merely contingent: respect for the law does not motivate states. Law-making too follows patterns of state interests: states engage in practices (often mislabeled as customary international law) following their interests, and typically conclude either treaties or other documents in accordance with, again, their interests. Occasionally, this yields useful insights. Their discussion of the most-favoured nation clause in GATT/WTO law holds greater explanatory force than any other discussion I have seen; indeed, generally speaking the chapter discussing GATT/ WTO is the best in the book, perhaps precisely because international trade law lends itself (at least up to a point) for an analysis in strict terms of state interests. The limit is reached, however, when domestic pressure groups enter the picture: what is good for the steel sector may be bad for consumers; what is good for agriculture at large may work out badly for individual cotton producers. Here, then, a more subtle interest analysis would be required, if one wants to limit oneself to thinking in terms of interests to begin with. Somewhat curiously, moreover, Goldsmith and Posner are at pains to describe trade law as being related to national security asserting, possibly not without exaggeration, that ‘from the start, GATT was colored by concerns about security’ (at 144). One can only speculate why they feel the need to introduce security concerns into the trading regime, but a possible reason for doing so might be that security conjures up images of a single enemy at the time; conjures up images of arms races with individual enemies, and thus would lend itself to an analysis in rational choice or game theory terms – rational choice and game theory both being strongest when the setting is bilateral and complex policy decisions can be reduced to decisions concerning national survival. Thus, by squeezing security into the trading regime, the latter becomes more amenable to an analysis with the help of the tools of the authors’ choice. By contrast, Goldsmith and Posner’s attempt to subject human rights regimes to an analysis in terms of state interests fails to convince, precisely because human rights cannot all that easily be captured in terms of state interests3: indeed, doing so would be 2 Stanley Hoffmann, ‘International Systems and International Law’, in Klaus Knorr and Sidney Verba (eds), The International System: Theoretical Essays (Princeton University Press, 1961) 205-237. 3 And even if it were possible and perhaps useful to do so (as I have argued elsewhere in the context of

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counterintuitive, for why would a government constrain itself ? The standard explanation here (since Moravcsik, at least4) is that governments constrain themselves to lock fragile democracies in place. This, however, while intuitively plausible5, still does not add up to human rights conventions as sets of bilateral rights and obligations between states. And while the authors make the point (again, fair enough) that much human rights law is not taken all that seriously, riddled as it is with reservations, interpretative declarations, and open-ended provisions, still, their construction of human rights relationships as being bilateral, between stronger and weaker states, is unpersuasive, despite their rather desperate attempt to call this ‘reality’ (at 134). Perhaps the most disappointing chapter though is chapter 6, about the rhetorical force of international law. Throughout the work, Goldsmith and Posner are confronted with the more or less constructivist argument that even if states may not actually respect international law, they usually at least claim to do so: states tend to couch their arguments in legal terms. And throughout the work, Goldsmith and Posner promise they will deal with this claim in chapter 6. But when chapter 6 comes around, it does nothing of the sort: instead of addressing the constructivist claim that legal norms, even if they do not immediately constrain states, at least help structure the environments in which states operate, the discussion collapses into the simplistic statement that when states claim they respect international law, they are lying. This may well be true of course (if only, one hopes, less widespread than Goldsmith and Posner suggest), but does nothing to address the deeper underlying theory according to which international law is the language in which international political and moral debate is conducted. II There is, as is well known, a lot to be debated about rational choice theory. One staple of the debate is that it is built on dubious premises. There is the premise that states are unitary actors; this is of doubtful value, as states typically themselves comprise various political parties, various interest groups, and perhaps still various classes, to use that unfashionable term. There is the premise that states act rationally – again, of doubtful value, as Goldsmith and Posner themselves acknowledge at some point. And there is the premise that those states, when acting rationally, only have each other to reservations), it would seem that general human rights discourse nds an analysis in terms of interests rather objectionable, and this general discourse cannot be dismissed as irrelevant without more. See Jan Klabbers, ‘On Human Rights Treaties, Contractual Conceptions and Reservations’, in Ineta Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime: Conict, Harmony or Reconciliation (Martinus Nijhoff: Leiden, 2004) 149-182. 4 See Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic delegation in Postwar Europe’, 54 International Organization (2000) 217-252. 5 Note however that Moravcsik’s argument would be stronger if he could also explain why states, after signing, wait several decades before ratifying, or before accepting individual complaints procedures.

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think about: the settings from which Goldsmith and Posner draw their conclusions are typically two-player games. But there are deeper problems. One of the main points Goldsmith and Posner make is that states will typically follow their interests, and this would allow them both to draw conclusions on the constraining force of law and, ideally, also allow them to predict behaviour: rst identify the interest, and it should not be too difcult to gure out what will happen next. How then to identify state interests? Their answer is that state interests can be identied by looking at what states do, for obviously, when acting they follow their interests. This suggests, however, a problematic circularity: interests are identied by action, which in turn is taken as evidence of interests.6 More problematic still, rational choice theory (at least in Goldsmith and Posner’s somewhat crude rendition) is incapable of handling changes in interests. Put differently: clearly - following Goldsmith and Posner - the US must have had an interest in invading Iraq (or liberating Iraq, if you will) in March 2003. Equally clearly, this interest did not exist during the 1980s, when Iraq was a friend in the ght against Iran. Nor did it exist in 1991/1992, if Goldsmith and Posner’s logic is followed; after all, operation Desert Storm stopped when Iraq had been kicked out of Kuwait. So what happened in the meantime? Or to put it even more starkly, judging by its actions the US did not have an interest in invading Iraq in March 2002, a year before going into Iraq: at that time it still refrained from invading. Answering that in the meantime weapons of mass destruction were found and therewith the national interest changed is, obviously, not quite satisfactory (given the noted absence of such weapons), and self-defeating – at best. Charitably, weapons were believed to be found, and such a belief suggests that what matters is not so much interests as such, but rather perceived interests (and perceptions typically tend to be in the eye of the beholder, unsuitable for dispassionate analysis from afar). Answering that Saddam Hussein had in the meantime been disclosed as a ruthless dictator does not seem to cut it either: Saddam’s capacity for ruthlessness was well known throughout the 1990s, and probably before that as well. Judging purely by state behaviour, a change in interest must have occurred somewhere down the line, but judging purely by state behaviour, it remains unclear what that change was, or, for that matter, what the interest at stake is. By the same token, the focus on national interest has a hard time explaining domestic policy change. A nice example is the signing and later ‘unsigning’ of the ICC Statute by the Clinton and Bush administrations, respectively. Surely, under the premises of rational choice theory, the Clinton government must have acted in the national interest when signing the ICC Statute. Equally obviously, under the same premises, the Bush administration must have acted in the national interest when ‘unsigning’ it. Rational choice theory, based as it is on the premise that the state is a monolithic actor, has no explanation to offer for such a change. Surely, the national interest cannot have changed overnight if other circumstances did not change. 6

See on this point Onora O’Neill, Bounds of Justice (Cambridge University Press, 2000) at 16-17.

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A more fruitful approach then, both when it comes to the invasion of Iraq and the signing and later ‘unsigning’ of the ICC Statute, would focus on domestic factors. A different administration means a different outlook on issues, including foreign policy issues, and a different conception of the national interest. The point is not that there is something terribly mistaken about this; the point is, quite simply, that rational choice theory (again, at least in Goldsmith and Posner’s rendition) cannot capture this sort of consideration without giving up one of its fundamental premises – and arguably, it is precisely its premises that make it workable. And to make things even more complicated: it has been suggested that Clinton’s signing of the ICC Statute, on his last day in ofce, had little to do with any calculation concerning the national interest and was intended, rst and foremost, to place his successor in a difcult position. Again this is the sort of consideration rational choice theory has a hard time dealing with, but then again, the same applies to any theory. On a more fundamental level, there is the problem that rational choice theory speaks to the acts of individuals (or individual states), but is incapable of explaining systemic concerns. At its best, rational choice would help to rank the preferences of individual parts of a larger system. Thus, it might help explain (charitably) why states would sometimes wish to conclude treaties, and would sometimes wish to conclude non-binding agreements. What it cannot explain is why it would be possible to conclude treaties to begin with: surely, the possibility of concluding a treaty cannot depend on the intentions and interests of individual states: individual states cannot decide that pacta sunt servanda, nor that some pacta shall not be all that servanda.7 This is, instead, a characteristic of the overarching legal order. But where does this legal order itself come from, if not from immediate state interests? What explains the emergence of international law, as a tool that (charitably) can be activated or de-activated by states? And leaving the charitable interpretation aside: can the de-activation of international law truly be said to be determined by states themselves? III Rational choice then, and afliated approaches like game theory and law and economics, would seem to be of limited explanatory value. Crudely put: the prisoner’s dilemma is better at explaining an arms race between two actors than at explaining the construction of a human rights regime involving 200 actors; it may, as Robert Axelrod suggested, usefully explain the behaviour of English and German troops in the trenches during Word War I8, but has a hard time explaining the form and contents of the Statute of the International Criminal Court, or the prosecutorial policy of the Rwanda Tribunal, 7

Elsewhere I have argued in great detail that the possibility of concluding non-legally binding agreements is based on highly implausible foundations. See Jan Klabbers, The Concept of Treaty in International Law (Kluwer: The Hague, 1996). 8 See Robert Axelrod, The Evolution of Cooperation (Basic Books: New York, 1984).

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or the compulsory licensing provisions in the TRIPs agreement, or why Kosovo was considered to be worth a humanitarian intervention while Darfur was not. But of course Goldsmith and Posner’s aim was never to devise an explanation for international law. Their point, quite literally, is to sketch the limits of the law; and to carve out a space, beyond those limits, where power can operate freely and unimpeded. Theirs is a political agenda, which has fairly little to do with naïve academic thoughts about the search for truth, knowledge and understanding. There is, in and of itself, not an awful lot wrong with this (although the ease with which the law is supposed to surrender to presumed realist dictates is somewhat disconcerting9), and the book is not disappointing because of its politicized nature. Instead, it is disappointing because, quite simply, it represents unconvincing scholarship. Their message would have been a lot more convincing if based on a more robust and subtle version of rational choice theory, and surely, such versions must exist.10 By the same token, their message would have come across a lot stronger if they had not tried so desperately to t human rights into a state-interest based framework, or tried to connect trade to security, or had taken the constructivist argument seriously, or had looked beyond the circle of kindred spirits for inspiration and guidance or even sheer information. And sometimes they seem downright disingenuous. No one would ever expect customary international law (at best equipped to deal with coordination problems, but never able to institutionalize cooperation) to solve ‘multistate collective action problems’ (at 226) or to give rise to ‘genuine multistate cooperation’ (at 37) or ‘true multilateral cooperation’ (at 39). To blame customary international law for not delivering what should not be expected of it to begin with, hardly contributes to our understanding of customary law: it is a bit like complaining that Tiger Woods is not terribly good at playing basket ball. As it is, the explanatory force of The Limits of International Law is, well, extremely limited; at best, it suggests that states generally act in the pursuit of interests, but that is hardly a novel message: Max Huber already formulated much the same thought almost a century ago, with about as much (if not more) authority.11 Perhaps the problem resides in what may well be the general dilemma of the social sciences: the things that can be measured with accuracy are usually not all that interesting, and have little to say about what actually happens. Yet, the closer one comes to a truthful rendition of what happens, the more one depends on sensitivity and intuition, and these are hardly scientic instruments: as someone once quipped, the only thing a sociologist can actually prove is that the light goes on when he icks the switch: the rest is speculation. This 9

On this, see Jan Klabbers, ‘The Relative Autonomy of International Law, or The Forgotten Politics of Interdisciplinarity’, 1 Journal of International Law and International Relations (2004-2005) 35-48. 10 On the anecdotal level, I have never felt myself reacting quite so strongly when reading the work of, say, George Downs. See, e.g., George W. Downs, David Rocke, and Peter N. Barsoom, ‘Is the Good News about Compliance Good News for Cooperation?’, 50 International Organization (1996) 379-406. 11 Max Huber, Die Soziologischen Grundlagen des Völkerrechts (Berlin: Verlag Dr. Walther Rothschild, 1928, rst published 1910).

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is, of course, Pol Sci 101, and well illustrated by classic debates between pluralists and elitists over the question ‘who governs?’. Perhaps this is something Goldsmith and Posner, given their ambitions to substitute policy science for law, should have taken more seriously. Jan Klabbers

THE CONSTITUTIONALIZATION OF THE WORLD TRADE ORGANIZATION. LEGITIMACY, DEMOCRACY AND COMMUNITY IN THE INTERNATIONAL TRADING SYSTEM. By Deborah Z. Cass. Oxford University Press: Oxford/New York, 2005. 266 pages. ISBN 0-19-928584-5. The establishment of the World Trade Organization (WTO) in 1995 has fuelled a vigorous exchange of views about the constitutionalization of the international trade regime. This debate has been motivated by the changes agreed during the Uruguay Round to both the form and substance of the international trade liberalisation system: the creation of an international organization to administer it, strengthening of the dispute resolution mechanism and expansion of the regime to areas such as intellectual property, services, sanitary and phytosanitary measures and technical standards. These developments have also brought to the fore several fundamental questions concerning the role and function of the WTO in the international arena: How to address the looming legitimacy crisis and respond to the protesters gathering on the streets of Seattle, Cancún and Hong Kong? Should the democratic credentials of the WTO be improved, for instance, by strengthening the role of the civil society or even private citizens in the system? How about the new quasi-judicial dispute settlement system with its compulsory jurisdiction - how will it impact the interpretation of WTO law? Will it attempt to stretch the borderline between the national and supranational and intrude spaces previously under national domain? The fact that such questions have received so much scholarly attention conveys a shared understanding that something fundamental happened to the international economic architecture around the mid-1990s. But what exactly was it? There seems to be far less common ground on answering this question: while some scholars are boldly arguing that the international trade regime is constitutionalizing, many others ercely contest the validity of any such claims. Against this background, the name of Deborah Cass’s book is intriguing: by incorporating the words constitutionalization, legitimacy, democracy and community it holds a promise of tackling all the most essential topics of the WTO debate. And indeed, the reader is not disappointed as the book largely manages to live up to the expectations generated by its ambitious title. The rst part of the book is dedicated to explaining the origins of the WTO constitutionalization debate and dening ‘the received account’ of constitutionalization, which is subsequently used as a template

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to analyse both the pro- and anti-constitutionalization arguments put forward in the WTO context. The second part of Cass’s work analyses the three dominant visions supporting the constitutionalization of the WTO. The conclusion here is, on the one hand, that none of the three visions matches the traditional understanding of constitutionalization. On the other hand, through its interaction with the international economic law discourse, the received account of constitutionalization itself appears as outdated and in the need for rethinking. The third and nal part of the book is inspiring in attempting to look beyond the constitutionalization debate. It rst gives the oor to the anti-constitutionalization arguments, again exploiting the received account for assessing them. Highlighting the importance of some of the anticonstitutionalization critiques, Cass then attempts to think about the fundamentals of the WTO without the constraints of the current constitutionalization mindset but still harnessing its creative force. According to Cass, one of the goals of her work is ‘to unscramble what is meant by the claim that the WTO is constitutionalizing’. (at 18) For this reader, this certainly seems like a worthy objective: especially some of the most ambitious arguments regarding constitutionalization of the WTO seem to rest on somewhat wobbly doctrinal foundation.1 Thus, one of the elements that, in my view, has been requiring further attention is some profound analysis on how constitutionalization should be understood in the WTO context and exactly what kind of constitutionalization the various arguments about the WTO envisage. Cass heeds this call by drawing on international, transnational, supranational and domestic legal theory and building in Chapter 2 what she calls the ‘received account’ of the term constitutionalization. She identies six elements that form the core of the received account. Accordingly, constitutionalization entails a set of social practices to constrain economic and political behaviour, includes a belief in the emergence of a new foundational device or Grundnorm and only occurs where a political community exists to authorize its making. Constitutionalization also necessitates both a process of deliberative law-making and some realignment of the relationship between the sub-entities and the constitutionalized entity. Finally, it requires a level of social acceptance of the legitimacy of the process itself. (at 19) However, Cass is careful not to get xated on the traditional understandings of constitutionalization, mainly developed in the national law context. Thus, the mere fact that none of the arguments on constitutionalization of the WTO completely matches the received account does not necessarily have to mean that the WTO is not constitutionalizing. (at 207-208) Indeed, one of Cass’s conclusions is that the received account has become dated and ‘the very conception of constitutionalization that animates our discussion requires 1

See, for instance, Ernst-Ulrich Petersmann, ‘Time for a United Nations “Global Compact” for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration’, 13 European Journal of International Law (2002) 621-650, and the related criticism by Philip Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’, 13 European Journal of International law (2002) 815-844 and Robert Howse, ‘Human Rights in the WTO: Whose Rights, What Humanity? Comment on Petersmann’, 13 European Journal of International Law (2002) 651-659.

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rethinking.’ (at 240) Nevertheless, the received account seems to adequately full the function assigned to it in Cass’s book as a template for assessing the arguments for and against the constitutionalization of the WTO. In Chapter 3, Cass situates the WTO constitutionalization discourse in the context of general international economic law scholarship and draws attention to six recurrent themes, which, in her view, have provided a fertile ground for the visions of the constitutionalization of the WTO to grow. (at 58) These themes are: the conation with the concept of institution with a constitution; making a link to the general globalization scholarship; sharing a general consensus about the benets of trade liberalization; focusing on procedural regulation; being xated about dening the eld; and a transformative urge to change the world order. The Chapter contains some interesting observations on how the constitutionalization visions actually began to take shape: by focusing on institutions and constitutions instead of mere rules, international economic law scholars generated a sense of coherence and unity, leading to the argument that a new Grundnorm and a legal order was emerging. Portraying the old GATT system as an institution and the WTO as a constitution also vested the latter with an aura of legitimacy and authority – although for some scholars, including myself, the constitutionalization of the WTO continues to challenge its legitimacy rather than the other way around. Furthermore, the international economic law scholarship began identifying new sites of political authority thereby blurring the lines between economic, political and legal authority and making a constitutional transformation seem plausible despite challenges to its legitimacy. (at 62-63) Overall, this Chapter is useful in locating the WTO constitutionalization discourse in a broader context. However, as the bigger picture necessarily incorporates such complex issues as the general debates about globalization and international trade liberalization, parts of this Chapter remain close to the surface level. In the second part of her work, encompassing Chapters 4, 5 and 6, Cass uses the received account to analyse three different visions of the constitutionalization of the WTO. The rst one, institutional managerialism, sees the WTO as a tool for institutional management of trade disputes through a system of neutral rules. It seeks to replace diplomacy and politics by management techniques and by focusing on institutions, it is able to suggest that a level of coherence has been achieved, signalling the emergence of a new Grundnorm. (at 143) The key proponent of institutional managerialism is John Jackson who, in 19982 ‘conceptualized the trading system in an entirely new way, clothing it with legitimacy, and suggesting a new legal basis for what had previously been seen as a simple international treaty arrangement.’ (at 97) Despite its groundbreaking implications, Jackson’s work portrayed itself as merely descriptive of changes taking place in international trade law. As Cass indicates, in this apparent neutrality and pragmatism lies one of the key problems of institutional managerialism:

2

John H. Jackson, The World Trade Organization: Constitution and Jurisprudence (Royal Institute of International Affairs: London, 1998).

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Finnish Yearbook of International Law (Vol. XVI, 2005) it creates the illusion of being a exible, neutral, technocratic constitution while running the risk of becoming self-legitimating, bureaucratic, insufciently deliberative, and legalistic constitution which appeals to predominantly classical economic telos and, indirectly intrudes on national regulatory function and diversity. (at 99)

This is a succinct observation: I myself have found the writings of Jackson appealing both because they convey his outstanding expertise and insight on international trade law and because they navigate the potentially dangerous waters of political conict in a condent and seemingly dispassionate manner. However, looking closer, his clear and pleasant painting contains some unsettling details. The second vision, rights-based constitutionalization, is primarily based on the work by Ernst-Ulrich Petersmann. As is widely known, Petersmann has been building up a theory of ‘the right to trade’ – in his view, the international trade regime should be seen as a system of rights, protecting not only states but also the trade-related rights of private individuals.3 Compared to institutional managerialism, Petersmann’s rights-based constitutionalism is openly prescriptive and has an articulate vision for change both in the long- and short-term. (at 167) Amongst international economic lawyers, Petersmann is well-known for his bold arguments about the implementation of the right to trade: in his view, individuals should be allowed to bring claims against governments in domestic courts for the violation of international trade rules. He also comes very close to supporting the idea of the direct effect of WTO rules in national legal systems – something that would certainly have radical consequences in dualist legal systems. More recently, Petersmann has advocated what the calls ‘human rights approach’ to WTO rules and responded to some of the criticism by the anti-WTO movement by calling for more openness, transparency and public participation in the trade regime. Petersmann’s purported hi-jacking of human rights legitimacy in the service of his free trade agenda has lead to strong criticism.4 Seen in that light, Cass’s analysis of Petersmann’s vision is temperate and she seems to give it more credit than do many others. Cass argues, however, that there are ‘signicant technical problems’ associated with Petersmann’s arguments, and acknowledges the validity of many of his critiques. (at 176) Given some of the critical avours in other parts of her book, Cass’s assessment of Petersmann’s work and her reserved but optimistic conclusion that ‘we cannot ignore some interesting tendencies within rights-based constitutionalization towards equality and participation’ (at 176), is still 3

See, for instance, Petersmann, supra note 1 and also Ernst-Ulrich Petersmann, ‘The “Human Rights Approach” and WTO Law and Policy’, 7 Journal of International Economic Law (2004) 605-627 and ErnstUlrich Petersmann, ‘Human Rights and International Economic Law in the 21st Century: The Need to Clarify Their Interrelationship’, 4 Journal of International Economic Law (2001) 3-39. 4 See Alston, supra note 1 and Petersmann’s reply ‘Taking Human Dignity, Poverty and Empowerment of Individual More Seriously: A Rejoinder to Alston’, 13 European Journal of International Law (2002) 845-852.

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slightly surprising – but also thought-provoking in taking a more nuanced position on Petersmann than one would have expected. The third approach, judicial norm-generation, concentrates on constitutionalization through judicialized rule-making by the WTO dispute settlement system. The method is borrowed from the common law tradition where cases generate constitutional norms, and is based on the assumption that the process of adjudication itself can constitute a new system of law – an approach advocated, for instance, by Weiler in the context of the European Court of Justice.5 (at 179) For this reader, this Chapter is perhaps the most interesting part of Cass’s book: with its compulsory jurisdiction the WTO dispute resolution system always stood out from the growing number of other international courts and tribunals. Partly for this reason, it has played an important role in dening the relationship between the WTO system and other rules of international law – thereby giving impetus to the rapidly emerging debate about the fragmentation of international law. The WTO dispute settlement system has also proved incredibly popular and played a key role within the multilateral trading system. Indeed, it has been described as ‘the most powerful court in the world.’ 6 But even against this background, can the WTO Appellate Body really be viewed as the ‘dynamic force and engine behind constitutionbuilding’ (at 177)? Most parts of Chapter 6 reect Cass’s article published earlier in the European Journal of International Law7 in which Cass argues that the Appellate Body has used three judicial techniques to generate norms and structures of a constitutional type: it has amalgamated constitutional doctrines from other constitutional systems to its jurisprudence (for instance, jurisdictional competence and substantive discrimination); it has engaged in system making (through its decisions about fact-nding and the relationship between WTO law and other legal regimes); and incorporated domestic subject matters (such as health and environment) within its jurisdiction. This part of the book contains many useful insights, including discussion on the constitutionalizing aspects of the Hormones ruling8 (at 187-191 and 199-202) - an analysis that has the welcome effect of underlining that the WTO dispute settlement system is not merely a legal-technical exercise but it actually had the fundamental impact of realigning the relationship between the international and national competencies. In discussing the link between constitutionalization and the legitimacy of the WTO dispute resolution in the Chapter, Cass refers to the argument by Robert Howse that the WTO dispute settlement system increases the legitimacy of the trade regime 5

Here Cass refers especially to Weiler’s early work on European constitutionalization in Joseph H. H. Weiler, ‘The Transformation of Europe’ 100 Yale Law Journal (1991) 2403-2483. 6 Philippe Sands, Lawless World. America and the Making and Breaking of Global Rules. (Penguin Books: London, 2005) at 99. 7 Deborah Z. Cass, ‘The “Constitutionalization” of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade’, 12 European Journal of International Law (2001) 39-78. 8 European Communities—Measures Concerning Meat and Meat Products, WT/DS26/AB/R (United States), WT/DS48/AB/R (Canada), 13 February 1998.

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especially through creating a layer beyond rules and bureaucracy and serves as a mechanism for balancing competing values, thereby improving the social legitimacy of the WTO. (at 180-181) Here I would, however, be far more critical of the legitimating function of the WTO dispute settlement system: it is questionable whether even its most celebrated decisions such as the Shrimp-Turtle9 were genuinely as sensitive to nontrade values as Howse’s argument presupposes.10 Besides, the recent decision by the Biotech panel indicating that the Cartagena Protocol on Biosafety was irrelevant to the interpretation of WTO law in a dispute covering partly the very same subject matter is likely to rip open some old wounds and destroy some bridges that the Appellate Body had managed to build between the trade community and its opponents.11 Thus, rather than accepting the argument that the WTO is constitutionalizing because its dispute settlement system has increased its legitimacy, I would actually lean towards the opposite direction and argue that the WTO dispute settlement system can decrease the legitimacy of the multilateral trade regime by exposing fundamental divides between the values promoted by the international trade community and other interest groups. Albeit for different reasons, also Cass acknowledges that she has changed her views since writing the 2001 article: now she indicates that the vision of judicial norm-generation ‘claims too much in respect of constitutionalization’ – it does not pay sufcient attention to the relationship between legitimacy and constitutionalization and undermines the role of politics in the process of constitutionalization. (at 178) She points out that directly linking increased legitimacy with constitutionalization risks reducing their relationship into a simple cause and effect model while in reality, their relationship is far more complex. (at 183) Thus her current conclusion that ‘constitutionalization solely by judicial means is illegitimate: it skews the relationship between politics and law, and leads to complex economic regulatory decisions being made on the basis of inadequate information, expertise, and interest input.’ (at 186) All the three Chapters discussed above also contain analysis on the relationship between the visions of constitutionalization and the received account. When assessed against this template, it is clear that while they satisfy some elements of the received account, none of the three visions of WTO constitutionalization completely conforms to the traditional understanding of constitutionalization. Two questions thus seem to logically arise from the rst part of the book: If the visions of the constitutionalization of WTO do not match the received account should the next step be reforming the WTO to accord more closely with the conventional criteria for constitutionalization? Or 9 See, e.g., U.S.-Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, 15 June 2001. 10 For more detailed discussion, see Kati Kulovesi, ‘A Link Between Interpretation, International Environmental Law and Legitimacy at the WTO Dispute Settlement’, 6 International Trade Law and Regulation (2005) 188-196. 11 European Communities – Measures affecting the marketing and approval of biotech products, WT/ DS291/R (United States), WT/DS292/R (Canada) and WT/DS2923/R (Argentina), 29 September 2006, paras 7.74-7.75.

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should the received account be revisited in the light of the developments in international economic law? Stopping for a while to reect, I cannot escape the feeling that there are even more essential issues that should be addressed rst. It would seem that the lenses of constitutionalization are but one possibility of looking at the fundamental questions brought to the fore by the establishment of the WTO in 1995. Even more pressing is the question whether the WTO should be constitutionalizing in the rst place: why should we embark on such a journey and where would we hope to arrive through it? Also relevant is the question of how we could hope to reach our destination with international trade law and generate adequate social support for the project bearing in mind, for instance, the social forces opposing the ratication of the Treaty establishing a Constitution for Europe. While contemplating these questions, it is important to bear in mind that in its current form, the WTO represents a particular model for organizing international trade relations - and there are many defects in that model. In my own research, I have identied ways in which the jurisprudence of the WTO dispute settlement system has undermined the goals and objectives of international environmental law and resulted in interpretations that are not justiable from the point of view of international environmental law but instead appear as biased towards the interests of the international trading community.12 However, there are plenty of other and even more convincing arguments against according a constitutional status to the economic rules and values that lay at the heart of the WTO system. Reading on with all these reservations in my mind, I am happy to discover that similar concerns play a prominent role in the third and nal part of Cass’s book, entitled ‘Against Constitutionalization.’ It begins by identifying and analysing in Chapter 7 the different versions of the anti-constitutionalizationst critique. The concluding Chapter 8, ‘Trading Democracy,’ sketching Cass’s own vision of the way forward, is also situated under the anti-constitutionalization heading. The Chapter on the anticonstitutionalization critiques presents the most inuential arguments by the sceptics: that constitutionalization threatens the decision-making capacity of nation states; that it does not sufciently address the problems of deliberation, participation and dialogue; that it skews decision-making towards economic goals but ignores the economic impacts of the decisions; that it marginalizes private law and that it asserts a claim to authority without going through the ordinary processes of legitimization. (at 239) The nal Chapter 8 in Cass’s book sketches an interesting proposal for shifting focus from constitutionalization to ‘trading democracy.’ In her own words, Cass would: … propose not only the rethinking of current WTO constitutional models, and the adoption of constitutional transformationist mindset, but also merging the lat12

Kulovesi, supra note 10. In my article I contrast in particular to the way in which the Appellate Body completely rejected the relevance of the environmentally-oriented precautionary principle to the interpretation of WTO law in the Hormones dispute while emphasizing the relevance of the rather obscure but trade-friendly Principle 12 of the Rio Declaration in the Shrimp-Turtle case to support its view that unilateral environmental trade measures were prohibited.

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Finnish Yearbook of International Law (Vol. XVI, 2005) ter with democratic arguments about economic development taken from the anticonstitutionalizationist thesis – those arguments, for instance that focus on the distributive consequences of constitutionalization, the omission of non-economic values from the calculus of WTO decision-making, and the constructed nature of the playing eld upon which international trade operates. (at 242)

In other words, what is needed is broadening the focus from the form of constitutionalization to the substantive deciencies highlighted by the anti-constitutionalisation critique. However, while interesting, Chapter 8 is not as meticulous and carefully justied as the other parts of Cass’s study. Exposing the full potential of Cass’s proposed alternative vision of ‘trading democracy’ would therefore require more work and elaboration. As a part of her vision, Cass is suggesting to reorient the WTO ‘toward its primary goal, development.’ (at 243) At the rst glance, this proposition would seem to entail several intellectual challenges – starting from the denition of development and its beneciaries to the more economic debates. In fact, this would seem to lead us easily to the competing visions of neoliberalism (putting its faith on deregulation and markets and arguing that the benets of trade liberalization will gradually ‘trickle down’ from the rich to the poor) and what has been called ‘trade and social democracy’13 (advocating a more proactive intervention with the markets to ensure the even distribution of the benets of trade liberalisation) – how to choose whether one of these, or some other account of development, would be the model promoted through the trading democracy? Placing development at the centre of the WTO project would also encounter the problem of harnessing meaningful political support. With development and the interests of the poorest WTO Members as its stated objectives, the ongoing Doha Round has been stagnated for quite some time with negotiators repeatedly missing their deadlines. While all key players eagerly engage in political rhetoric emphasizing the fundamental importance of the Doha Round and further development of the WTO regime, they have failed to make concrete moves towards the necessary reforms in key areas such as agricultural subsidies and market access. All this is generating uncertainty regarding the future direction of the WTO and the commitment of the key trading partners to the global trade liberalization efforts. Thus, after the enthusiasm of the late 1990s, some of the sparkle surrounding the WTO seems to be gradually dying out. Ensuring the continuity of the WTO project in such a situation is, of course, what some of the proponents of WTO constitutionalization want to achieve through granting trade liberalization rules a stronger, constitutional status. But is it really the right way forward? Even with the substantive and formal transformation suggested by Cass, I am still left wondering: Why do we need the WTO to be constitutionalizing? And how exactly would Cass’s proposed alternative differ from the current constitutionalization models? How would it contribute in circumstances such as the present where all the WTO members 13

Sally Razeen, ‘Globalisation, Governance and Trade Policy: The WTO in Perspective’, published at the website of the London School of Economics (visited 19 March 2007).

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seem to agree on the importance of development at a general political level but are reluctant to take action towards its realization? To recap, the overall conclusion of Deborah Cass’s book is critical of the current models for the constitutionalization of the WTO. Cass manages to convincingly argue that the ideas on the WTO constitutionalization are both descriptively inaccurate (as they fail to comport with classical understandings of constitutionalization) and prescriptively undesirable (as the prevailing conceptions have retarded other ways of thinking about the WTO and its relationship with democracy, sovereignty, and the relationship between economics, politics and law in the international economic order). (at 3-4) In her view, ‘WTO constitutionalization should become both procedurally transformed and democratically informed, with development as its key goal.’ (at 245) There is little doubt that Cass’s book constitutes one of the most signicant contributions to the debate about the constitutionalization of the WTO. The most notable achievements of Cass’s work are its intellectual rigour and the creation of an analytical framework for assessing the various arguments concerning the constitutionalization of the WTO. While her vision of ‘trading democracy’ requires some further elaboration, Cass leaves her readers with some fundamental questions that will hopefully permanently inuence the debate about the constitutionalization of the WTO: Do we really want the WTO be constitutionalizing? In case we do, what are the substantive goals and objectives that we want to advance through such a process? Or has the constitutionalization discourse already narrowed our horizons, preventing us from creating alternative visions for the future of the WTO and the international trade regime? Kati Kulovesi

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BETWEEN EQUAL RIGHTS: A MARXIST THEORY OF INTERNATIONAL LAW. By China Miéville. Brill: Leiden, 2005. 375 pages. ISBN 978-9004131347. All these people sense THAT THERE IS SOMETHING MOVING AGAIN. And, of course, are pushing their way onto the stage bearing banners of liberty …. Moreover, my wife is quite right when she says that, after all the misère she has had to endure, the revolution will only make things worse and afford her the gratication of seeing all the humbugs from here celebrating their victories on the continent … She says, à la guerre comme à la guerre. But THERE IS NO guerre. Everything is bourgeois. [Alles bürgerlich].1 Karl Marx Neither the development of production nor the outbreak of war can, by itself, produce difference in a universe where everything is bourgeois. The whole of difference must be concentrated in the science of the party to come, for science alone entails the negation of the bourgeois world. Science is at once the absolute leisure of the philosopher and the total dedication of the militant.2 Jacques Rancière

Between Equal Rights: A Marxist Theory of International Law is a work of science. As such it combines philosophy and militancy, absolutism and totalising ambitions (as Jacques Rancière remarks above of Marxist science more generally), and offers a refreshingly ‘unapologetic response to those who call for the rule of law’ in international affairs (at 319). Yet as the above quote by Karl Marx suggests, the ambition of scientic rationality is always in a debate with what I would like to insist upon calling, from the outset of this review, its other. I say ‘insist’ because, throughout Between Equal Rights, Miéville attempts to rule as illegitimate any use of the word ‘other’, or the related concept of ‘alterity’. Miéville comments that his ‘heart sinks’ at the appearance of the word ‘other’ – ‘this modern-day banality’ (at 247). He cites Terry Eagleton with approval to the effect that ‘otherness is not the most fertile of intellectual furrows’ (ibid.). He seems surprised when Antony Anghie’s use of the word alterity ‘does not stop him developing a nuanced analysis of specics which evade that framework’ (at 248). Miéville more generally seeks to ridicule any use of language which he characterises as ‘postmodern’ and any reference to scholars he characterises as ‘postmodernist’. The repetitiveness with which he does so initially served as a barrier to my engagement with this book, and then began to intrigue me. By the time I nished reading, I had come to realise 1

Letter from Karl Marx to Frederick Engels, 11 December 1858, in Karl Marx and Frederick Engels, Collected Works (International Publishers: New York, 1979), vol. 40, 359 at 360, as cited in Jacques Rancière, The Philosopher and His Poor (translated by John Drury, Corinne Oster and Andrew Parker, Duke University Press: Durham and London, 2003) at 112. 2 Rancière, The Philosopher, supra note 1, at 112.

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that it is only by paying attention to the form in which Miéville engages with other critical scholarship that it is possible to understand the political message conveyed by Between Equal Rights. Key to this political message is the position from which Miéville writes about critical theorists – the position of the judge. Miéville is not interested in engaging with the complexity of arguments or in thinking about the ways the texts he reads are singular or surprising. Instead, his critical practice is organised around the act of judgment. The tone in which Miéville conveys these judgments is cynical and profane. He delights in unmasking fraudulent radicals, declaring for example that both the entirety of the American Critical Legal Studies movement and ‘postmodernism’ in general greatly exaggerate their marginality ‘for the purposes of radical chic’ (at 47). He cites with approval the ‘wry comment on the spurious categorisation of CLS as an “underground” movement’ made by Mark Kelman in 1987 (ibid.). The work of CLS writers, according to Miéville, often fails to produce ‘rigorous, systematic analyses of international legal indeterminacy as distinguished from what are sometimes frankly theoretically contingent and far less persuasive postmodern garnishes’ (at 56). When critical scholars produce work which Miéville judges to be of some worth, this is said to be marred by ‘postmodernist cliché’ (at 307), or to suffer ‘from a tendency to recycle postmodernist platitudes’ (at 225). Critical international lawyers would never come to the conclusion that law is unreformable, as they are motivated by the bad faith realisation that ‘it would be biting the hand that feeds them’ to do so (at 3). Despite all this judgment, it is not clear on what grounds postmodernism has been charged and found guilty. Miéville is not a judge who feels compelled to provide reasons for judgment, or who is governed by the protocol that before the rush to judgment, a judge must ‘listen and remind the judged that law is something held in common’.3 While Miéville does engage respectfully with the work of many Marxist scholars, and reads carefully and largely approvingly the right-wing theories of Carl Schmitt, Wilhelm Grewe and Myres McDougal, he feels no need to engage closely with the work of those who are inuenced by what he calls the ‘now-ubiquitous postmodern social and linguistic theory’ (at 47). So, to take one example, Miéville is comfortable recycling second-hand descriptions of the work of Jacques Derrida, citing one page from Of Grammatology as the basis for a characterisation of ‘Derrida’s system’ as one of ‘linguistic essentialism’, and the foundation for a wholesale rejection of the relevance or utility of the entirety of Derrida’s scholarship for critical legal thought (at 55). In his repetitive dismissal of ‘postmodernism’ in general, and of any work that is concerned with otherness or alterity in particular, Miéville seems to be attempting to expel something, without ever putting into words what that something is. As Jacqueline Rose writes in the context of the British Conservative Party: ‘Judge a party not by its words, but by what it has to get rid of in order for its basic agenda – unmanageable only when spoken – more subtly, less visibly, to proceed’.4 In a moment, I will explore 3 4

Peter Goodrich, ‘J.D.’, 6(1) German Law Journal (2005) 15 at 23. Jacqueline Rose, States of Fantasy (Clarendon Press: Oxford, 1996) at 58.

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the implications of this for the project Miéville seeks to develop – what must he get rid of in order for this project to proceed? Before I do so, I want to mention one other quite striking feature of this text – the cynical and somewhat pugilistic style in which Miéville conveys his judgments. This style is also central to the message of Between Equal Rights. In addition to the scathing tones in which he rejects postmodernism, Miéville also condemns much previous scholarship in the disciplines of international law and politics, describing the work of one senior international lawyer as having reached ‘astonishing levels of crudity’ and his arguments as ‘clearly nonsensical’ (at 135), and that of a legal historian as ‘gung-ho historical philistinism’ and ‘absurd’ (at 158). He displays the man of action’s contempt for those who are overly concerned with words rather than deeds, describing Schmitt’s interest in etymology as manifesting an ‘almost Kabbalistic neurosis and precision’ (at 29), and commenting that he nds it ‘difcult to imagine the thought of a coup attempt by critical lawyers lling the functionaries of the state with horror’ (at 319). The abandonment of the norms of civility that usually govern academic writing seems designed to convey a radical sensibility. In the Australian context, this style of speech is both commonplace and politically conservative – politicians of the right (and I include here the right wing of the Australian Labour Party) delight in engaging in an anti-intellectual and masculinist discourse of denunciation and abuse along these lines.5 In Britain, where Miéville lives, it may be that this kind of speech is genuinely revolutionary, when staged against a backdrop of iconic upper class British civility. But whatever its political connotations, this kind of ‘muscular orality’ stages a particular kind of challenge to ofcial power.6 Derrida writes of the gure of the rogue or ‘voyou’ who seeks to bring into being a ‘transgressive countersovereignty’.7 The voyou, Derrida suggests, occupies the streets and exercises ‘an illegal and outlaw power’.8 The voyou can be one of the ‘great criminals’ who ‘fascinates because he dees the state, that is, the institution that, in representing the law, secures and maintains for itself a monopoly on violence’.9 In so doing, the voyou may rise up, ‘in an insurrection of countersovereignty, to the level or height of the sovereign state’.10 This voyou who may rise up to the level of the imagined gure of the sovereign is ‘someone whose language and ways of speaking, whose 5 See, for instance, Mark Latham, A Conga Line of Suckholes: Mark Latham’s Book of Quotations (Melbourne University Press: Melbourne, 2006). The phrase ‘conga line of suckholes’ was used by Latham, a former leader of the Australian Labour Party, to describe the Australian Prime Minister John Howard and the members of his government in their relationship to the United States. Latham is one in a long line of federal parliamentarians celebrated by the Australian media for their brash populism. 6 Meaghen Morris, Ecstasy and Economics: American Essays for John Forbes (EMPress: Sydney, 1992) at 44. 7 Jacques Derrida, Rogues: Two Essays on Reason (translated by Pascale-Anne Brault and Michael Nass, Stanford University Press: Stanford, 2005) at 68. My thanks to Megan Donaldson for this reference. 8 Ibid, at 66. 9 Idem. 10 Idem.

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offences against proper speech and against the “good word”, are to be condemned. One begins acting like a voyou as soon as one begins uttering “profanities”’.11 I will return in conclusion to explore the ways in which this roguish style relates to the political vision which seems to inform Between Equal Rights. The aspects of performance I have described to date tend to overshadow the argument that Miéville develops throughout the book. And yet this argument makes an important contribution to international legal debates. Miéville argues, following scholars such as Martti Koskenniemi, that international law is indeterminate. It is indeterminate not because language in general is indeterminate, but because international law is an expression of the deeper indeterminacies of liberalism. And yet while international legal rules may appear indeterminate, international law itself can be seen to be determinate when read as the manifestation of a deep grammar. Miéville’s book thus aims to explain for the reader this relationship between apparent indeterminacy at the surface level of legal argument, and actual determinacy at the level of ‘the deep grammar of law’ (at 114). Miéville argues that if we shift our focus from legal rules to the (singular) legal form, we will be able to understand that law is an unchanging manifestation of the system of commodity exchange and ‘exploitative class relations’ (at 92). ‘Law is class law, and cannot but be so’ (at 101). In order to achieve this understanding, Miéville appeals to the tools of science. For Miéville, the aim is to develop observations of ‘actually-existing law’ and then to offer a ‘convincing general [theory] of law on the basis’ of such observations (at 104). This method involves deriving ‘the legal form’ from ‘actually-existing law, rather than from some abstract notion of law’ (at 79). ‘[C]oncrete reality’ must be ‘the starting point of observation’ (at 80). ‘Other theories failed because they did not explain actuallyexisting law’ (at 83). For these reasons, Miéville turns to the work of the Marxist legal theorist Evgeny Pashukanis. Pashukanis was a dominant gure in Soviet jurisprudence from the 1920s until his denunciation as an enemy of the people and subsequent arrest and disappearance in 1937 (at 75). Miéville draws particularly on the early work of Pashukanis, notably his book The General Theory of Law and Marxism and the commodity form theory Pashukanis there develops.12 According to Miéville: Pashukanis’s is a theory of real, “impure” law. He takes as his point of departure real law in the real world, and both its reality and its “law-ness” must be explained. For that, the legal form itself must be the starting point (at 84).

For Miéville, the only general theory of law which can emerge out of this rigorous scientic practice of observation is the commodity-form theory. Miéville argues that

11

Idem. Evgeny Pashukanis, ‘The General Theory of Law and Marxism’ in Piers Beirne and Robert Sharlet (eds), Pashukanis: Selected Writings on Marxism and Law (Academic Press: London, 1980). 12

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Finnish Yearbook of International Law (Vol. XVI, 2005) a historicised commodity-form theory is the only paradigm able to explain not only the differences between laws in different epochs, but their shared feature, the legal form itself, that which makes them all law (at 104).

According to this theory, as developed in the work of Pashukanis, the legal subject is the commodity owner – an agent of exchange who owns private property and is formally equal to all other commodity owners (at 78). ‘The legal form is the necessary form taken by the relation between these formally equal owners of exchange values’ (ibid). Formal, abstract law is the legal form necessary to regulate disputes which may arise between formally equal and sovereign individuals ‘without diminishing either party’s sovereignty or equality’ (at 79). For Pashukanis, ‘the legal form is the form of the relations that inhere between the necessarily abstract and isolated bearers of commodities’ (at 92). In the words of Marx, this legal form gives the appearance of a contest of ‘right against right, both equally bearing the seal of the law of exchange’.13 In international relations, international law as ‘the legal form of the struggle of the capitalist states among themselves for domination over the rest of the world’,14 will also appear as contractual relations between equal sovereign states as owners of property (here territory). It is Marx’s comment on this situation which gives rise to the analysis at the heart of Miéville’s argument (and from which Miéville borrows the title for his book). ‘Between equal rights, force decides’.15 At the level of domestic law, this force is exercised through the authority of the state, which appears to act as an impartial, impersonal guarantor of the system of right (at 123). In fact, the bourgeois state represents the interests of capital (at 120-123). At the international level, there is no such impartial guarantor of law. Thus the system of international law will depend upon the exercise of ‘the necessary coercive force … held by the participants to the legal relations’ (at 140). There is a constitutive contradiction within international law ‘between equality of juristic right and disparity of political power’ (at 176). The fact is that although both parties are formally equal, they have unequal access to the means of coercion, and are not therefore equally able to determine either the policing or the content of the law (at 140).

Miéville argues convincingly that the history of European international law is ‘intimately bound up with capitalism and violence’ (at 319). As a result, he concludes that there is ‘no prospect of a systematic progressive political project or emancipatory dynamic coming out of international law’ (at 316). Nor are there are any grounds for optimism in 13

Karl Marx, Capital Volume 1 (Penguin: London, 1976) at 344, cited in Miéville at 120. Evgeny Pashukanis, ‘International Law’ in Piers Beirne and Robert Sharlet (eds), Pashukanis: Selected Writings on Marxism and Law (Academic Press: London, 1980) at 169, cited in Miéville at 138 (emphasis in original). 15 Marx, Capital, supra note 13. 14

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the recognition that international law is open to competing interpretations. According to Miéville, ‘“free competition” between interpretations does not ensure the destruction of the international legal system, but is in fact a pervasive feature of that system’ (at 67). Yet this argument leaves the reader wondering how the writing of this book ts into this story. Does not the same exchange model govern contemporary knowledge production in a world where anything can be said in the free marketplace of ideas? Might the ‘free competition’ between interpretations of international legal history be ‘a pervasive feature’ of that history as it unfolds? So Miéville argues here that the history of international law is one of exploitation, and the next person says that the history of international law is one of emancipation – back and forth it goes, and what matters is the form of this exchange of views. As Miéville remarks, ‘[f]or there to be historical motion from within a totality, that totality must contain contradictions’ (at 4). Miéville refers to a series of examples of legal developments in Britain to demonstrate the futility of attempting to create new political subjectivities or new modes of regulation through legal reform.16 According to Miéville, such administrative developments respond to situations in which it has become impossible to continue to pretend that the transaction taking place (say between factory owners in newly mechanised industries and sellers of labour power) amounts to a contract between free individuals. Such problem-solving only reinforces the dominant form of law as a contract or bargain between autonomous, free and equal persons (at 110-113). The exchange of ideas in the market-place might similarly be dismissed as a purely formal gesture, one which reinforces the dominant conception of free political speech as a right exercised by sovereign individuals participating in public life. So what then is the model of political practice that informs this text? Why write or speak under such conditions? How does Miéville imagine the subjects he is addressing, or the community this text seeks to constitute or call into being? Here the aspects of style I have already discussed give us a clue to the vision of political community and agency underpinning the writing of this text. In particular, I want to suggest that in adopting the position of the judge, Miéville refuses to engage with those who threaten the unied vision upon which his theory depends, and that in adopting the style of the voyou, Miéville gives us a glimpse of the model of political agency underpinning the text. Let me explain what I mean. Miéville argues that law properly so called only ever takes a form which expresses exploitative social relations. Thus it is necessary to abandon law. Pashukanis himself ‘was, absolutely, hostile to law, inasmuch as he understood it to be a reection of capitalist property relations’ (at 98). Critics of international law today must similarly

16

Miéville mentions the Factory Acts recognizing the rights of workers to bargain collectively in recognition of the inequality in bargaining position between workers and capitalists, late nineteenth century legislation extending the legal personality of trade unions and labour organizations and anti-discrimination legislation of the twentieth century, at 108-113.

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For this reason, To fundamentally change the dynamics of the system it would be necessary not to reform the institutions but to eradicate the forms of law – which means the fundamental reformulation of the political-economic system of which they are expressions. The project to achieve this is the best hope for global emancipation, and it would mean the end of law (at 318).

Thus, for Miéville, the future will depend upon science and its insights into the transformation of the capitalist economy which determines legal and other relations. In order to sustain this argument, Miéville must refuse any possibility that other kinds of law may coexist with this European tradition, and that this European tradition of law may have any capacity to limit itself and enter into relations with other legal traditions. Miéville makes clear that if any other form was found to exist, this would fatally undermine the commodity theory of law. In its rigorous and systematic derivation of law, the commodity-form theory cannot accommodate dilution: if law is still law, but is derived from the commodity form along with something else, then the commodity-form theory, which explained the very existence and law-ness of law from the heart of the commodity, is invalidated (at 103).

What matters for Miéville is the persistence across time and space of this one form – not the ephemera of legal rules, institutions, ceremonies, protocols, modes of reasoning and so on. For Miéville, any recognition that different forms of law existed in the past or exist today would fundamentally undermine the model developed by Pashukanis Theories claiming that Pashukanis is “no longer” right elide with more fundamental critiques of his approach tout court. The former tend to focus on what is different about modern and earlier forms of law, but they leave untheorised that which is shared – and if we believe that they are both law, they must share some form from which to derive a common “law-ness”. As Pashukanis’s theory has been judged inadequate in this model, that shared legal form must derive from something other than the commodity-form. To say that Pashukanis was once right but is no longer, in other words, is to say that he was never right (at 103).

As a result of this dependence upon uniformity, the point at which Miéville most explicitly adopts the position of judge is in his stern response to those who argue that there may be forms of international law that do not derive from European traditions

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or that predate the emergence of the sovereign nation-state in Europe. In response to this argument, Miéville asserts an ideal form of international law. International law can only exist in a situation where there are sovereign nation-states. It is improper to call anything else international law. Here Miéville’s earlier methodological insistence on studying ‘actually-existing law’ reaches its limit, for how is the student of law to dene the category of study, or the subject of analysis? What objects make up ‘actuallyexisting law’, from which the form of law can be derived? And what forms of relation are to be excluded from that eld? Miéville has already told us that we should not call something law simply because it is so in the opinion of a lawyer – in that case its ‘law-ness is entirely contigent’ (at 58). It is not enough to accept rules as law simply ‘because we say they are law, rather than because of their form or essence’ (at 14). Miéville criticises H.L.A. Hart for his argument that the analogy between international and municipal law is one of content: If the legal form is not shared between international and municipal law, then they have no legal essence in common, and the only thing that makes them both “law” is that they are both called law (at 15).

The answer, for Miéville, is that international law derives from, and governs relations between, sovereign nation-states. It is ‘only with the rise of sovereign states that international law can be considered to have been born’ (at 161). It is ‘absurd’ to suggest that ‘the written agreements between rulers of pre-feudal antique political entities and the modern edice of international law are straightforwardly two specimens of the same species’ (at 158). The term international law cannot be applied to such relations. Miéville suggests that as they are ‘clearly relations mediated by the legal form, between political entities’, we might call them ‘inter-polity law’ but not ‘international law’ – the only recognised nations are those that are coterminous with states and the only recognised form of law is that which arises from relations between such states (at 162). When there were no sovereign nation-states, there could be no law whose subjects are those nations-states. The term ‘international law’ cannot rigorously be applied to pre-medieval society. Any such use should be read as contained by invisible scare quotes (at 159).

Thus for Miéville, [W]hat we might call proto-international law, the legal form regulating relationships between organised social groups, predates capitalism and the bourgeois state. Only when the bourgeois state becomes the central subject of those relations can we with full justication call them international law: that is when the “international” is born (at 132).

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Nor does Miéville consider that there could be any recognizable international law in ‘non-Western societies’ (at 165). While some scholars ‘have performed an invaluable service’ in marshalling ‘evidence’ for the role played by ‘Asian or African nations’ in the ‘development of international law’, Miéville does not accept the ‘cruder’ argument that ‘in the non-Western world in diverse periods, international law existed’ (ibid). According to Miéville, it is not sufcient simply to ‘label’ the relations and norms regulating relations between ‘clans’ or ‘tribes’ or ‘ethnic groups’ simply as ‘international law’ (at 166). These claims must be subjected to the judgment of the scientic observer. The observer must not simply accept that such relations and norms are international law, without ‘scrutinizing’ them. The claims of those suggesting that international legal relations ‘existed in ancient India, or Africa’ must be ‘proved case by case’ (ibid.). They must ‘demonstrate’ that there existed normative relations between groups that can properly be characterised as lawful (ibid.). But what kind of protocol could govern such an act of scrutinizing another’s norms and claims to lawfulness? Is the position of the judge the appropriate position to adopt when your legal tradition meets another? If the ‘case’ can not be proved and the facts demonstrated satisfactorily, will we simply be left with the old paradigm, in which the South is represented as a space without law, a ‘free space’?17 This response is politically inadequate in light of the contemporary demand by indigenous people in states like Australia that indigenous laws be recognised as a source of law. This includes the demand that the international also be thought from the viewpoint of indigenous law. It is not a sufcient answer to this demand to say that the only law that can be recognised is the law of the ‘powerful’ or that derives from the nation-state (at 182-183), or that the only form of law which can properly be called international law is one that is derived from capitalist commodity relations. Instead, at least in the Australian context, I am asked to take responsibility for my law – to nd, within the legal tradition which brought British law to this place, protocols for engagement with the other laws that move through this land.18 The form of the relation between those laws, and the protocols that govern their meeting, can not be derived solely from the law of the occupiers. Thus ‘international law’ must be understood as plural within the legal space of Australia if justice is to be possible. Miéville also dismisses writers from the Third World who focus on the importance of rules of international law. In particular, Miéville criticises the Indian scholar BS Chimni for being ‘unable to break from this model in which rules, rather than the legal form, are the “fundamental particles” of international law’ (at 67). ‘Where he discusses “form”’, Miéville remarks, ‘Chimni is in fact focusing on legal rules’ (at 66). For Miéville, this is 17 On the ‘new world’ as a ‘free space’, see Carl Schmitt, ‘The Land Appropriation of a New World’, (109) Telos (1996) 29 at 30. 18 I am grateful to Christine Morris, Mary Graham and Shaun McVeigh for their articulation of these questions of law and protocol at the Of the South symposium, Grifth Law School, June 2006. This symposium was premised upon, and performed, the recognition that there is more than one law in the South, and that these laws exist in relation to each other.

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simply a mistake to be corrected. He seems to have no curiosity about why Chimni might take this approach. But what if one were to assume that Chimni is something other than simply a second rate Russian? Why might a Marxist theorist who has experienced at rst hand the ‘colonial concept of law’19 – the form of modern law introduced to British India – discuss written legal rules as a question of form? I do not have the denitive answer to this question, but perhaps it might relate to the ways in which the legitimacy of British authority in India, and thus the effectiveness of the global division of labour which British colonialism facilitated, depended upon the ideology of progress. As Nasser Hussain argues, in India this ubiquitous narrative of progress was ‘told as one of overcoming the sovereign excess of despotism in favor of a rule-bound, bureaucratic form of government’.20 The English lawyer and philosopher James Fitzjames Stephen, who served as legal member of the Colonial Council in India in the 1870s, declared that this progress would be accomplished in law by replacing the rule of the sovereign, which was ‘little more than organized and authorized massacre and extortion, with a process of professionalization and legal codication’.21 Through this process, ‘all the important branches of law in daily use are thrown into a distinct, systematic, written form’.22 As Hussain comments, this change in law and government involved the introduction of ‘a new form’ which was part of ‘a new eld of operation’.23 Law was part of ‘this new normative arrangement’, in which power was directed at social improvement and the disciplining of the colonized.24 The British attempt to legitimise and distinguish its own ‘rule’ of law and its civilising benets was carried out by constantly comparing it to an imaginary ‘precolonial form of rule known as Oriental despotism’.25 This attention to government through law in the form of written and impersonal ‘rules’, rather than through personal, authoritarian forms of power imagined as indigenous, accompanied a shift in the purpose of colonial domination. During the nineteenth century, the purpose of British colonial domination in India shifted from guaranteeing a ow of tribute and securing the extraction of resources, to ‘ensuring the vast Indian market could be conquered for British industry’.26 Thus where the model of law in nineteenth century Europe was the lawsuit (at 86), in British India (and in those countries subjected to ‘good governance’ projects as part of World Bank conditionality today) the model was (and is) the code. Hussain 19

Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (The University of Michigan Press: Ann Arbor, 2003) at 35. 20 Ibid, at 38. 21 James Fitzjames Stephen, ‘Codication in India and England’, Fortnightly Review 18 (1872) 644 at 648-50, as cited in Hussain, Jurisprudence of Emergency, supra note 19, at 38. 22 Idem. 23 Hussain, Jurisprudence of Emergency, supra note 19, at 38. 24 Ibid, at 39. 25 Ibid, at 43. 26 Eric Stokes, The English Utilitarians and India (Oxford University Press: Oxford, 1959) at xiii, cited in Hussain, Jurisprudence of Emergency, supra note 19, at 60.

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suggests that the nineteenth century colonial attempt to distinguish law from coercion by reference to rules can be traced through to the work of the British legal theorist H.L.A. Hart in the twentieth century, and Hart’s insistence upon the importance to legal theory of ‘the idea of a rule, without which we cannot hope to elucidate even the most elementary forms of law’.27 In light of this history of the transformation of the mode and purposes of British imperial rule, it might be productive for those interested in critiquing exploitative practices to study written rules as a form of law, rather than assuming that the lawsuit is the paradigmatic model of capitalist law for everyone and everywhere. Miéville, however, does not pause to speculate upon such questions. He gives no sign that he has any curiosity about why scholars from the Third World may not share his views of what counts as law, or about why written rules or the practice of codication might be of interest in the context of legal form. In this sense, Miéville reproduces the sensibilities which informed nineteenth century law and science. As Jennifer Beard comments of that period: The Old World was now re-performing its discovery of the New World, but this time it would not be lost for words; there would be no cause for wonder.28

Thus despite his repeated calls for engaging with actually-existing law, and despite his critique of those idealist theorists who assume a form of law and then judge whether law in the world ts within their categories, Miéville himself refuses to accept that there could be other valid conceptions of actually-existing law. My point is not that he could do otherwise, but rather that Miéville fails to take responsibility for the political decision involved in recognising one form of relation as law while refusing to recognise others. In making that decision, Miéville will not accept that there might be anything to learn from those who inhabit legal spaces outside Europe. As a result, his is a political identity that will not ‘put itself at risk’.29 The future continues to depend upon a revolution which will be ushered in by the muscular, urban, voyoucracy of Europe. ‘The whole of difference must be concentrated in the science of the party to come’.30 A politics based on totalising theories offers little to those in the many places scattered across the globe whose existence has been shaped by other European certainties about, and experiments in, social order. In the words of Costas Douzinas, Ronnie Warrington and Shaun McVeigh: The Marxist moral and political agenda of equality and democracy are part of the most honourable traditions of western radicalism. Moral indignation and political 27 H.L.A. Hart, The Concept of Law (Oxford University Press: Oxford, 1961) at 78. See the discussion of Hart in Hussain, supra note 19, at 37. 28 Jennifer L Beard, The Political Economy of Desire: International Law, Development and the Nation State (RoutledgeCavendish: Oxon, 2006) at 132. 29 Rose, States of Fantasy, supra note 4, at 47. 30 Rancière, The Philosopher, supra note 1, at 112.

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opposition to domination and exploitation are still potent critical tools and should be nurtured carefully. But they must be disconnected from all aspirations to unication and all claims to possession of the ultimate truth. We have learned, at great cost, that imperial theory all too easily leads to imperialistic practice and can defy the best intentions.31

The Marxism of Between Equal Rights cannot admit of this. It offers a welcome corrective to the tendency to call for empty formalism and the rule of law as counters to exploitation and domination, and it offers a compelling reminder that imperialism has gone hand in hand with the progress of international law for centuries. Yet the energy of its critique can only be sustained by staging repeated attacks on those who do not share the European experience of capitalism and its legal forms. The obsessive repetition of this attack suggests that Between Equal Rights is unable to exorcise the threat that its other represents. Marxist scientism is haunted by that which it must repeatedly push away to create the illusion of uniformity, of a uni-form which persists across time and space. Even a dedicated militant and man of science such as Marx could not expel from his consciousness the demands made of him by those outside the world of revolutionary philosophy – those intimates (his wife and family) with whom he inhabited the everyday. Perhaps this realisation is what lay behind the words he wrote to Engels in 1858: ‘Everything is bourgeois’. “Everything is bourgeois” means there is no outside. There is no other place from which to raise another army, an army for which science would provide the training. Everything takes place within the sublime and grotesque tragicomedy of the bourgeois era. And revolutionary justice can come about only as the product of a double annulment, of a perpetual reversal between the normality of historical development and the pathology of its decomposition. In this play of reversals science by itself does not have the power of decision.32

Anne Orford

31

Costas Douzinas, Ronnie Warrington and Shaun McVeigh, Postmodern Jurisprudence: The Law of Text in the Texts of Law (Routledge: London, 1993) at 111. 32 Rancière, The Philosopher, supra note 1, at 119.

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ANUARIO DERECHOS HUMANOS. NUEVA ÉPOCA. Vols. 3 and 4. By María José Falcón y Tella (Ed.), Institute of Human Rights, Complutense University, Madrid, 2002, 2003. Vol. 3 590 pages, Vol. 4 449 pages. ISSN: 0212-03641 The philosophy behind the 2002 and 2003 Anuario de Derechos Humanos published by the Human Rights Institute of the Complutense University in Madrid could be characterised - paraphrasing a recent book by its editor - as an academic disobedience to certain excesses against the person and the society committed by an almighty liberal/modern rule of law.2 In some cases the critic focuses on philosophical aspects like the Kantian reductive concept of person (Leticia Cabrera Caro, ‘Autonomía y dignidad: la titularidad de los derechos’, 11-41, 2002) or the undesirable uniforming effects of the modern idea of the individual (Ramón Macía Manso, ‘Derecho a la singularidad’, 337-452, 2002). In other cases the articles disclose sometimes harmful or dubious political aspects of the liberal landscape, like the loss of social solidarity under the stratication effect of economic and monetary measures by the International Monetary Fund (IMF), the World Bank (WB) and the World Trade Organization (WTO), (François Ost, ‘Mundialización, globalización y universalización: Abandonar, ahora y siempre, el estado de naturaleza’,3 453-491, 2002), or the paradoxical defence of apolitical human rights that, after all, result from political struggle (Martti Koskenniemi, ‘Sobre derechos humanos internacionales, contextos políticos y amor’,4 281-302, 2002). This description might, however, not represent the whole picture of the Anuario. Many pieces, notably those included in the 2003 volume, do not have this thrust of criticism of liberalism or modernity but have other aims; this is the case with the thorough review of recent philosophy of law by Carla Farelli, where the work of Aulis Aarnio, among others, is extensively presented and analysed together with the crisis of legal positivism (‘La losofía jurídica actual. De los años setenta a nes del siglo XX’,5 133-215, 2002) or the brief but promising essay about questions of gender in Hanna 1

All articles in the Anuario are published in Spanish. The quote from Martti Koskenniemi’s article is from the original text in English. Some of the articles have been published in English in the XIII Finnish Yearbook of International Law (2002). 2 María José Falcon y Tella, La Desobediencia Civil (Marcial Pons: Madrid, 2000). Edition in English, Civil Disobedience, The Erik Castrén Institute Monographs on International Law and Human Rights, 7/2004 (Brill Academic Publishers: Leiden, 2004). She also makes a contribution to the 2002 Anuario where she deals with the topic ‘Estado de necesidad e infracción de la ley. Análisis comparativo entre el modelo estadounidense y el español’. (State of Necessity and Breach of Law: Comparative Analysis of the Spanish and United States Model), 103-132. 3 (‘Mondialisation’, Globalization and Universalization: Abandonment Now and Always of the State of Nature). 4 (Human Rights, Politics and Love). 5 (Current Legal Philosophy: From the Seventies to the End of the Twentieth Century).

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Arendt (María Isabel Martín de Villodres, ‘Género y “natalidad” en la Filosofía práctica de Hannah Arendt’,6 259-270, 2003). The Anuario 2002 and 2003 cover a large number of interesting issues, including the problems of injustice and forum shopping created by different interpretations of the Geneva Convention in the EU (Timothy Endicott, ‘“Signicado internacional”: la cortesía en la adjudicación de derechos fundamentales’,7 81-102, 2002); the difference between the juridical principle of equality and ‘equality of opportunities’ as a political programme (Paloma Durán y Lalaguna, ‘La igualdad entre mujeres y hombres. Entre la política y la aplicación del derecho’,8 65-79, 2002); the necessity of the search for a cultural identity of human rights (Alfred Fernandez, ‘De la idea a la cultura de los derechos humanos. Los derechos humanos en el siglo XXI’,9 217-239, 2002); the desirability of strengthening political rights when seeking to establish the civic republican project of equal dignity, democracy and avoidance of individualism (Philippe Gérard, ‘Derechos humanos y democracia’,10 261-279, 2002); a review of the forces that affect the evolution of law (Ramón Macía Manso, ‘Causas de las transformaciones del derecho’,11 271-363, 2003); a description of the content of the right to privacy on the Internet (José Justo Megías Quirós, ‘Privacidad e internet: intimidad, comunicaciones y datos personales’,12 515-560, 2002); and nally the conicting ideologies of judges in adjudication (Santiago Carretero Sánchez, ‘Comentario a la STC 46/2001, de 15 de octubre. Libertad religiosa. El registro de las entidades solicitantes. La ideología como criterio diferenciador de los Magistrados’,13 43-63, 2002). Something that is common to most of the contributions mentioned above is that they make reference to the universal or the transcendent, taking into account a general concept of transcendence. Twelve of the twenty-nine articles contained in the two books14 were written by professors of philosophy of law, while most of the authors have their background in constitutional law or legal theory. In addition, pieces by one philosopher, one theologian and one international lawyer have been included. The strong presence of philosophers of law gives the Anuarios and its approach to human rights a very strong philosophical avouring. Incidentally, this seems to be the case with the publications of the Spanish human rights institutes even more generally.15 6

(Gender and ‘Nativity’ in the Practical Philosophy of Hanna Arendt). (‘International Meaning’: Comity in Fundamental Rights Adjudication). 8 (Equality between Men and Women: Between Politics and Adjudication). 9 (From an Idea to a Culture of Human Rights: Human Rights in the 21st Century). 10 (Human Rights and Democracy). 11 (Causes of Transformation of Law). 12 (Privacy and Internet: Intimacy, Communications and Personal Information). 13 (Commentary on the Decision of the Constitutional Tribunal, 46/2001, of 15 October: Freedom of Religion, Register of Applicant Entities, Ideology as Differential Criteria of the Judges). 14 The Anuario of 2003 also includes a chronicle of the Course of Biological Criteria in the Technological Revolution and and the Anuario of 2002 includes three book reviews. 15 So, e.g. issue no. 33 of the Cuadernos Bartolomé de las Casas of the Instituto de derechos Humanos 7

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The present article gives a critical overview and analysis of three outstanding contributions to the Anuario 2002 and 2003. An attempt is made to discuss, rst, a more typically European and second, the Spanish philosophical tradition. The reviewed articles are presented in the following order: two pieces dealing with globalization by François Ost and and Klaus Günther, followed by an analysis relating to a contribution by Leticia Cabrera Caro focusing on human rights.16 Globalization François Ost’s remarkable and thought-provoking article offers a very thorough and fruitful criticism of many of the problems of economic globalization. He distinguishes ‘mondialisation’ from globalization by dening globalization to have an ideological content, while ‘mondialisation’ is, in his view, interpreted only in economical terms (at 456). The state of nature that Ost proposes to abandon is the (neo) liberal economic state of nature, which describes the market as both a necessary and a universal order. For that it uses biological models and naturalist metaphors (at 456-457). This state of nature is undesirable, because it is a deceptive construction which disguises the (market) values on which it is based. This state of nature is articial in the same manner that every pretended state of nature is a result of ideological and political choices (at 461). This notwithstanding, the author assures us that there is a state of nature to which return is always possible. Ost refers to the pre-political situation about which Hobbes, Locke and, in particular, Kant wrote, in which life is described as a state of insecurity, even a state of war, with consecrated authority being absent (at 461-462). Considering the two declarations together - which is inevitable because only a few lines separate them - the reader discovers a potential aw in the discourse. Either no such thing as a ‘state of nature’ exists – and neither does the pre-political version of it – or it does exist and there are, in principle, various different possible conceptions of it – in which case, the market conception is just as legitimate as the pre-political one. This shows how there is, in fact, a third possibility that would make Ost’s argument logical ‘Bartolomé de las Casas’ from the University Carlos III in Madrid: Javier Dorado Porras, ‘Iusnaturalismo y positivismo jurídico: Una revisión de los argumentos en defensa del iuspusitivismo’, Cuadernos Bartolomé de las Casas no. 33 (Instituto de Derechos Humanos ‘Bartolomé de las Casas’, Universidad Carlos III de Madrid, 2004). Moreover, the ‘Colección de monograas’ of the same Institute is described as to be dealing with topics of political and legal philosophy. The review Persona y Derecho. Revista de fundamentación de las instituciones jurídicas y de derechos humanos, of the Instituto de derechos humanos at the University of Navarre, also has a philosophical standpoint. The issues of 47-2002 and 48-2003, contain the following symposiums, ‘Derecho, historicidad, lenguaje’ and ‘Multiculturalismo y derechos humanos’. 16 François Ost, ‘Mundialización, globalización y universalización: Abandonar, ahora y siempre, el estado de naturaleza’, (‘Mondialisation’, Globalization and Universalization: Abandonment Now and Always of the State of Nature) (2002) 453-491; Klaus Günther, ‘Pluralismo jurídico y Código Universal de la Legalidad: la globalización como problema de teoría del Derecho’ (Legal Pluralism and the Universal Code of Legality: Globalization as a Problem of Legal Theory) (2003) 225-257; Leticia Cabrera Caro, ‘Autonomía y dignidad: la titularidad de los derechos’, (Autonomy and Dignity, the Titularity of Rights) (2002) 11-41.

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and apparently, more in line with the argument that the author seems willing to defend: that the only ‘true’ state of nature is the Hobbesian and Kantian state of nature. According to Ost, the reason for the rejection of the liberal-economic state of nature is that it requires a withdrawal of politics for the benet of the market, and consequently a renunciation of the construction of a common destiny through politics (at 470). Moreover, he gives concrete and accurate examples of this weakness of politics in the context of globalization. Coinciding with a weakness of the position of the Westphalian State, Ost argues, this market oriented globalization deters the real development of countries (at 470-475). Despite the fact that the WTO is working effectively for the liberalisation of markets, it does not contribute to sustainable development – nonetheless sustainable development is presented, according to Ost, as a major aim of the international society of the 21st century. Thus, inequalities are growing: while in 1980 the 102 poorest countries of the world represented 8% of international exports, by 1990 this gure had decreased to 1.4% (at 480). Ost makes reference to the negotiation of the North American Free Trade Agreement (NAFTA) when Mexico was obliged to modify its constitution, which until that moment had guaranteed the non-alienation of indigenous soil (at 481). Many other examples in the article illuminate this backward process of politics denounced by Ost that convincingly call for a necessary alternative to globalization. Nevertheless, given the fact that the notion of sustainable development is very controversial it would be interesting to know on what Ost bases the argument that sustainable development is the goal of the international community for the 21st century (at 479). While the author praises the work of NGOs (limited to their eld of actions), he redirects the focus of the reader upon a renewed role for the state (483). In his view, a promising alternative to an undomesticated globalization would be to imagine new means of state intervention for the promotion of solidarity in the mondialised markets, a dialectical of the openness and closure as Habermas explains it (at 485-486, quoted from Habermas’ Après l’Etat-Nation17). For Ost, these proposals depart from the necessity of a renegotiation of the social contract and oscillate primarily between the reinforcement of international institutions and the maintenance of the state. But in this process neither the action of the markets nor economic protectionism may be privileged, in order to preserve both the individual and the universal values inherent to the project of modernity (at 486). The dilemma of modernity is represented, perhaps involuntarily, by the manifestation of the author’s own anxieties: with or without you I cannot live. Therefore Ost offers ‘a third way’ which seems to be an in medio virtus solution: the political supra state gure, of which the European Union is the most advanced example (at 486). The latter proposal might seem abrupt to the reader, after having examined the ways in which the international economic organisations and the empire - the United States, according to Ost, nowadays the only state capable of an imperial policy, - deter the development of poor countries (at 462-481). Nevertheless, the unquestionable faith of the author in the 17 Jürgen Habermas, Après l’Etat-Nation. Une nouvelle constellation politique (translated by R. Rochlitz, Fayard: Paris, 2000) at 80.

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Kantian project, juridical consecration of which, from the end of World War II, may be found both in the international criminal justice system (at 487) and the European Union (which is to him not only one phase more in the construction of a necessary world federation, at 487), deserves at least to be praised. However, a somewhat more critical standpoint towards these projects would perhaps have been more consistent with the author’s general line of argumentation. Although Ost’s recourse to public institutions in addition to individual rights for renegotiating the social pact on a ‘planetary level’ (at 489) seems justied, many questions still remain without answer. For example, is the European Union a part of globalization or not? In all fairness, the ambiguities of the European Union as a market are also - briey - mentioned by the author, but he suggests that a larger public space for discussion could overcome the socially destructive effects of the market (at 486). Again, no substantive reforms are called for, unless Ost considers the expansion of deliberative processes to be a substantive measure, which seems to be the case.18 Or where has the Kantian project been for the last 250 years? Following Ost’s courageous analysis of the economic ‘mondialisation’, which suggests that something ought to be changed, one can no longer be satised with what we already have. Finally, it is difcult not to feel that there is a certain frailty in a closed thought system that - in spite of talking about globalization - rotates on a European axis and still takes its fundamental concepts, such as the state of nature, for granted.19 Klaus Günther’s article about globalization as a problem of legal theory brilliantly deciphers the Habermasian concept of the universal code of legality and joins current central European debates on the topic. In his article, Günther presents the well-known evolution of national law to legal pluralism. This is done through an impressive overview of the different inuential factors, including the appearance of an economic system with legal autonomy based on the existence of international organisations such as the General Agreement on Tariffs And Trade (GATT), WTO, WB, IMF, and Transnational Corporations; the transnational regulation of the development of technology; the growing dynamics of human rights assisted by global media with the ability to break the boundaries of the national state; and the development of transnational criminal law (at 230-240). This emergence of transnational law coincides with the anthropological consideration of law and the discovery of the continuous renegotiations of law – no longer considered to be a monopoly of the centralised state but a semi-autonomous eld, an ‘amalgam’ with other normative systems (at 242). The end result is that legal pluralism is created by a plurality of actors, viewed by Klaus Günther as a challenging 18 For an interesting discussion on this tendency of equating an expansion of deliberative processes at the international level with an expanded recognition of social justice dimensions of global governance or a supposed linkage of procedural democratic (transparency, legitimacy, accountability) practices and changes in the structure of global economy by what she calls the ‘cosmopolitan legality’ see the article of Ruth Buchanan, ‘Perpetual Peace or Perpetual Process: Global Society and Cosmopolitan Legality at the WTO’, 16 Leiden Journal of International Law (2003) 673-699. 19 Leticia Cabrera’s writing also presents this fact. See below the comments on her article.

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‘legal demand’ (246), necessary to combine with the unity of law. The author thus describes several phenomena that can be more or less easily recognised. Günther then moves to introduce the concept of the universal code of legality -stemming from Habermas, but with clear Kantian inuences - which he suggests to be the essence of globalized law. The code consists of what could be described as an aggregate of several formal concepts and principles, such as the autonomy of exercise of attributed rights, or the right to appeal and a general differentiation of justice and injustice (at 246-248), everything being limited by the principle of discourse. This principle implies that only those norms are legitimate to which all individuals possibly affected by them give their consent as participants in the rational discourse (at 249). From a sociological point of view Habermas called this principle of discourse the ‘ideal speech situation’: a situation of unlimited and free discussion between equal and uncoerced individuals.20 This model of circles of legitimisation is disconnected from the legislature of the nation state; thus it is not grounded a priori in any place (at 250). Moreover, the universal code of legality is characterised by its ‘radical indeterminacy’ (at 252). This is the reason why even opposing social and interest groups might refer to the same code of legality at the same time. Their conicts are therefore, according to Günther, legal conicts (at 252). Incidentally, such emptiness of the legal code is also identied in human rights and acclaimed by Günther for the same reasons (at 253). This indeterminacy has been described as ambiguity in a similar context, when describing the open concept of a Global Civil Society. It is such ambiguity that allows us to identify certain contours which appear in its relations to ‘its other – the realm of global governance’.21 It is in the process of understanding the universal code of legality that the reader encounters confusion between illusion, mirage and reality. Thus it is difcult to distinguish whether such a code exists, especially since the author admits that it is difcult to nd a rational equivalent to the code both as concerns the concept itself and its empirical dimensions in the transnational context, since its existence would presume the existence of a general will created through the democratic processes and would need to include all individuals possibly affected (at 255). However, some pages previously the author states that from an internal perspective of law, a universal code of legality is clearly established in the transnational networks between state actors and non-state actors (at 229).22 This hypothesis is presented as a fact. Similarly, Günther 20

See e.g. Jürgen Habermas, Communication and the Evolution of Society (translated by T. McCarthy, Heinemann: London, 1979) 1-68. 21 Buchanan, ‘Perpetual Peace or Perpetual Process’, supra note 18, at 687. Inevitably one connects the universal code of legality with the language possibly used by the ‘cosmopolitan legality’ mentioned by Buchanan 22 Some traces of Kant’s idealistic voluntarism towards perpetual peace might be recognised in this attitude towards the universal code of legality: ‘Hence the question no longer is as to whether Perpetual Peace is a real thing or not a real thing, or as to whether we may not be deceiving ourselves when we adopt the former alternative, but we must act on the supposition of its being real’. Immanuel Kant, The Philosophy

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considers the sufciency of a universal code of legality to convert the law of legal experts into a democratic practice of negotiating in order to avoid power inequalities to be an ‘open question’ (at 254). It would seem that this would in fact be the central question to address when opening discussion about such a code. Following this and the fact that the code has a double role, object and theme and that it at the same time serves as the medium of the process of negotiation of contested universalities (at 253), the code would certainly appear as a political option in itself (at 228). So then, the old question surfaces: what is law, what is politics? Admittedly, the boundaries between the two concepts are growing more difcult to draw; however, the universal legal code bears excessive resemblance to a political agenda. The latter might be better illustrated by comparing the universal code of legality with radical democracy – also a political programme – mentioned in the contribution by Martti Koskenniemi to the Anuario, arguing that radical democracy ‘would think rights valuable precisely because of the way they combine the particular with an attempt at the universal’.23 Arguably, the essential difference would be in the process: the discourse principle, or consensus in the code, and the search (for the universal) in radical democracy. Apart from the fact that the search might be ambitious while consensus cannot be this, we have before us two different political programmes: One aims to create a structure for a search for justice, while the other is a code aiming to enable or improve a certain legal trafc and ostensibly contains the furthest perimeter of law. About Human Rights: Critics and Explorers The philosopher Leonardo Polo reminds us that there are people that have not been affected by modernity or have been done so only in a relative manner.24 Possibly, this could be the case for some of the ideas traced in several of the Spanish contributions to the Anuario, since the discourse appears to be disconnected from the current global (Western) discussion. Instead, the criticism is directed against the imperatives of liberal morals, which do attribute an (often economic) value to the person. It is characteristic of these writings that their focus is on the concept of person, the contemplation of its invaluable character which is not open to exceptions and the classical search for the good life.25 After reading some of the philosophical essays on human rights, and in view of certain legislation passed in Spain on great moral issues relating to the question of life during the last two decades, some might argue that these philosophers of law use human rights in their particular struggles and local resistance movements by attempting of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right (translated by W. Hastie, Clark: Edinburgh, 1887) at 80. 23 Martti Koskenniemi, ‘Derechos Humanos Internacionales, contextos políticos y amor’, at 302. Quote from the text in English, ‘Human Rights Politics and Love’, Mennesker& Rettigheter 4/2001, at 43. 24 Leonardo Polo, Presente y futuro del hombre (Rialp: Madrid, 1993) at 62. 25 The writers typically do not speak of values, but of virtues.

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to give human rights a philosophically defensible foundation in order to resist positive legislation. This might be a plausible explanation. Nevertheless, the struggles seem too contingent for this conclusion. Therefore, one could also argue that we are not facing a search for the philosophical foundation of human rights, but rather the other way around: the human rights concept is invoked, though to a limited extent, in order to support a particular philosophical tradition. The moderns26 conceived freedom as a normative fact characterised by the attribute that no man depends naturally on another man (at 13). This assertion of Leticia Cabrera serves as a guide to her remarkable essay about the modern concept of dignity. In an interesting historical account of certain concepts such as the person, freedom, state of nature, social contract and dignity, the author manages to explain how the evolution of ideas inuenced the different contents of those concepts in the period between the 13th and 18th centuries. The original intention of the author is to leave behind certain aspects of modern iusnaturalism, the origin of the concept of human rights, that make it difcult to consider a minor as a ‘subject of rights’ and declare him or her only the ‘object of protection’ (at 11). According to Cabrera, Pufendorf replaced the natural sociability of Aristotle by the articial social pact, with its origins in the freedom of man (at 14). Cabrera recalls that the idea of consent as the ‘only natural form of obligation’ was present in juridical thinking already in the Middle Ages, together with a ‘precept of conscience that binds all men’ (at 16). Interestingly, and despite their completely different philosophical origins, the author concurs at this point with the criticism of the liberal-Christian state famously made by Marx in his article ‘On the Jewish Question’:27 the liberals (for Marx) and the moderns (for Cabrera) rst isolate the individual from the community, and then give him or her individualistic rights. In the ‘ctional individualistic state of nature’ of Pufendorf (at 12), from which a universal obligatory precept of conscience is absent, the obligations of the political and civil state are posited over the pure and indeterminate freedom, the negative or empty freedom, as Hegel put it (at 16), with no concrete ends that could guide practical behaviour. This conception is sublimated by Kant, for whom only the initial will of the individual counts for assuring the legitimacy of freedom (at 18). Inasmuch as Cabrera declares dignity (this means, to be a member of the human species) to be the cause28 and title of Human Rights (at 39-40), the core of the article is to challenge the modern concept of dignity of the person proposed by Kant, who made it dependent on the rationality - understood as autonomy - of the human being (according to Cabrera this idea traces to Francisco de Vitoria). For Cabrera, this causes a reduction of the person to his or her auto-normative and autonomous character. 26

In this article the concept of moderns refers to the representatives of modern iusnaturalism initiated by Grotius (1583-1645) and whose most prominent member was Samuel Pufendorf (1632-1694) at 12. 27 Karl Marx, ‘On the Jewish Question’ in Early Writings (with an introduction by Lucio Colletti, Penguin Books: London, 1975) 211-241. 28 In the sense of origin.

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Thus, there might be a group of human beings that in different periods of history could be essentially excluded from possessing dignity (at 29). So, for example, in Kant’s time, children, minors, and women were nothing more than an accessory to the existence of another (at 31-32, quoted from Kant’s, Metaphysical Principles of Law29). In current times, the exclusion of dignity might focus on the aged, the poor, the handicapped, (unborn) children, and terminally ill patients whose main character is not their autonomy but their vulnerability (at 41). For Cabrera, the individual is not a person because he or she has rationality. Instead, because he or she is an individual of the human species, he or she is a person, and, as a person, has a rational nature (at 35). The author refers to the distinction of personeity and personality developed by the philosopher Xabier Zubiri to overcome the Kantian reduction (at 38). In the view of Zubiri, the human person represents an essentially different kind of reality. The difference lies in the fact that its essence is open as opposed to the closed essences of animals and other living things. What denes an open essence are not those notes that it naturally has, but its system of possibilities, the fact that it projects its life;30 consequently it provides itself with the possibilities. Both, freedom and moral nature have their roots in this open essence of man. Zubiri terms the group of notes that dene the essence of what it means to be a person personeity, and personality the realization of these notes by means of actions.31 For all the above criticism of notions of modernity put forward by Cabrera – the reduced concept of person, individualistic society or limited concept of law to the will of the individual - it remains somewhat obscure how this is to be reconciled with the maintenance of the concept of human rights, which in the view of Cabrera originates in modern iusnaturalism. Moreover, she does not even raise the question of its accuracy, and this would have not been too much to hope since she does question various principal conceptions of modernity and modernity itself. However, there are several brilliant thoughts in the essay - such as that the Pufendoran abstraction of the state of nature and the subsequent necessary social contract were so embedded in the consciences of the 17th and 18th centuries that the last iusnaturalists took them for granted, or that the dignity of the human being is made dependent on a certain historical moment of rationality - that reveal the author to be impressively well-read in the history of legal philosophy, and it might also invite the reader to reconsider some standard dogmas. 29

Emmanuel Kant, Principios metafísicos del derecho (translated by G. Lizarraga, Librería de Victoriano Suarez, 1873). This might be found in <www.bibliojuridica.org/libros/libro.htm?l=1563>. 30 Xavier Zubiri, ‘The Origin of Man’ in A.R. Caponigri (ed.), Contemporary Spanish Philosophy (translated by A.R. Caponigri, University of Notre Dame Press: Notre Dame, Indiana, 1967) 42-75, at 45. 31 Xavier Zubiri, El hombre y Dios, (Alianza: Madrid, 2003) 49-50. See also, Thomas B. Fowler, ‘Introduction to the Philosophy of Xavier Zubiri’, 1 The Xavier Zubiri Review (1998) 5-16. Available at <www.zubiri. org/general/xzreview/1998/introtozubiri.html> (visited 1 August 2006).

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There is no doubt that the critical reader will enjoy a great part of the Anuario. Also those looking for an overview of Spanish current narratives in legal philosophy will be satised by this reading, perhaps more due to the important theoretical insights offered rather than the contribution of the Anuario to a positivist view on human rights. Mónica García-Salmones

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New Finnish Doctoral Dissertations in International Law MÄNSKLIGA RÄTTIGHETER, MORAL OCH RELIGION – OM DE MÄNSKLIGA RÄTTIGHETERNA SOM MORALISKT OCH JURIDISKT BEGREPP I EN PLURALISTISK VÄRLD [HUMAN RIGHTS, MORALITY AND RELIGION – ON HUMAN RIGHTS AS A MORAL AND LEGAL CONCEPT IN A PLURALISTIC WORLD] Pamela Slotte In what follows, I am going to reect on the discussion of my doctoral thesis ‘Mänskliga rättigheter, moral och religion – Om de mänskliga rättigheterna som moraliskt och juridiskt begrepp i en pluralistisk värld’.1 In these concluding observations I wish to highlight what I consider to be the main traits of thought in my own discussion. This is all the more important because I am, as a researcher, not just an observer of reality, having language as a working tool. I have a part in what is at stake when I approach an issue and try to formulate a meaningful understanding of the matters involved. By way of introduction, I want to state that I have seen it as my overall task, from the perspectives of theological ethics, moral philosophy, and partly also legal philosophy, to try to understand human rights as a moral and legal concept in our late modern times. Late modern times are, among other things, marked by religious diversity. They are also marked by a continuing globalization, which challenges international law in various ways, e.g. the understanding of the nation-state as the primary legal subject when it comes to securing individuals their rights. We may further speak of a local and global society, which is plural with regard to values. Because of this, human rights theorists seem to consider it appropriate, to a large extent, to defend human rights law on legally internal premises when the focus is on the validity of that law. Still, in human rights law we also nd elements, such as the talk of ‘human dignity,’ which seems to point at something beyond the borders of the law. Various theorists have also tried to formulate an understanding of what it could mean that human rights are morally valid. Research Questions and Central Distinctions In order to present a point, it is sometimes necessary to simplify things. My way of expanding the discussion about human rights is, considering the scenario I have * The public examination of the doctoral dissertation was held at Åbo Akademi University, 5 December 2005. Professor Lars Østnor from the MF Norwegian School of Theology acted as the opponent. This is the English summary of the doctoral dissertation which was written and defended in Swedish. The summary is reproduced here with the kind permission of Åbo Akademi University Press. 1 The title of the dissertation could be translated in English to ‘Human Rights, Morality and Religion – On Human Rights as a Moral and Legal Concept in a Pluralistic World’.

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described above, to distinguish between human rights law as a legal discussion, a legal expression, and, what I call, the talk of human rights as a more wide-ranging phenomenon than the strictly legal formulations. By emphasizing the talk of human rights, I have sought to make clear that what I study, when I study something ‘beyond the borders of law,’ is not an ‘objective reality of values’ that we through our senses could establish that form the basis for human rights law. Such an investigation is not scientically possible. On the other hand, what I have established is that people de facto speak in terms of human rights in different situations. I argue that we can study this speech about human rights and thereby what is being articulated. I have tried to clarify what one is expressing when one articulates oneself in human rights terminology, and why one articulates oneself in human rights terminology. Furthermore, I have tried to clarify how this speech relates to human rights law, which has also been a subject of interest to me. Therefore, in my analysis I have moved on the level of language, which is also reected in my choice of methods. A lot could be discussed here, but not even within the frames of a doctoral thesis is there room for everything. In my study of human rights as a legal and moral concept I have therefore not claimed to be able to give an exhaustive account for human rights as a legal concept. I have focused on some aspects of the concept, which have been of importance in relation to the overall task of the research. I have, moreover, limited myself in the sense that I have studied questions that arise from the encounter between the concept human rights and the concept of a global ethos found in the thinking of Hans Küng.2 What has primarily been an issue, then, is in which sense we might speak of individual responsibility in relation to human rights, and, as a larger question, that of the legitimacy or moral validity of human rights in light of religious and value plurality. In my thesis I have, therefore, rstly posed questions concerning the perception of morality and of the human being as a moral person; and also religion in relation to both. Secondly, I have posed questions concerning the relationship between law and morality. More specically, I have studied the concept of a right in human rights law and the place of the individual in relation thereto, as well as ways in which the legal grammar opens itself up for morality. Furthermore, this has led me to ponder philosophically on the limits of legal language. How exible a concept is ‘human rights’? What can be expressed in human rights terminology? What falls outside the limits set up by the rules governing the legal discourse? This discussion logically entails an analysis of the phenomena of denition and redenition of the content of rights, against the setting of, amongst others, the more wide-ranging talk of human rights, which I have wanted to study.

2 See e.g. Hans Küng, Weltethos für Weltpolitik und Weltwirtschaft (Piper, München, 1997); Hans Küng, Projekt Weltethos (Piper: München and Zürich, 1992); Hans Küng & Karl-Josef (Hg.) Kuschel, Weltfrieden durch Religionsfrieden. Antworten aus den Weltreligionen (Piper: München and Zürich, 1993).

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A Dynamic Concept The understanding of human rights that I put forward in my thesis is the following. When claims to human rights are voiced, something of both legal and moral signicance may be at stake. This follows from what can be understood as the task and content of human rights, and the linguistic expressions that I will return to a little later. Law strives to describe reality normatively. Laws stipulate that something is prescribed, allowed, or forbidden for someone in relation to someone else or something else. Human rights as legal norms have this function. What is assumed is that there are limits to how human beings, whoever they are, may be treated. Hence, the concept of human rights can be understood as a linguistic metaphor, with the help of which, an attempt is made to formulate the borders beyond which that which is considered human turns inhuman. Where these borders between humanity and inhumanity should be drawn is the subject of continuous discussions. The content of the concept human rights widens and is redened whenever new voices are heard, or allowed to be heard. Hence, throughout the thesis I have characterized the concept human rights as legally and morally dynamic and as the subject of a continuous conversation. Furthermore, I have thought it likely that what one wants to articulate linguistically, is dependent on the larger context of meaning which one forms part of, and consequently religion may be of importance to the person in question. I have tried to pay attention to this aspect of dynamic in the concept by not pretending to be able to give a full account for the concept human rights in the thesis. What I have presented is, hopefully, a reasonable understanding of human rights as a legal and moral concept. Thus, my presentation has not claimed to capture ‘the one true content’. I have aimed at and would like, to leave the door open for descriptions that are incomplete, in the sense that I build into my understanding of concepts, such as the concept of a right, the idea that our understanding of them is not something that can be fully exhausted through a description on an abstract level. Legal documents provide us with denitions of rights that are more or less elaborated. Nevertheless, it is based on experienced injustices, which throughout history have raised the demand for ‘human rights’ and for the protection of individuals and groups, that the often abstract legal formulations are primarily elaborated and the content of individual human rights norms are spelled out. Negative experiences form the basis for joint statements as to what is at least unanimously considered ‘humanly undignied’. At the same time, the instances of identied breaches of human rights, e.g. by an organ designated to supervise that states act in accordance with the treaty that they have ratied, does not seem to bring us closer to a point where human rights norms would be totally unambiguous. This does not have to be understood as pointing in a relativistic direction (when we step outside the secure frames of formally valid law). I have rejected such a position, whereby I try to articulate an understanding of what this could mean in a moral sense. The lack of exhaustive unambiguousness should rather be seen as a genuine expression of an undeniable feature of human life, namely multifacetedness. This is also reected in the formulations we nd in human rights instruments. Despite the fact that the extensive growth of human rights norms and

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case law has led to a more specied understanding of abstractly formulated rights, of what is e.g. jointly understood with a ‘right to life’, room for interpretation remains. It does not just remain; rather, I claim that there is a recognized need to leave room for interpretation. It is asserted that what is meant by a right is not something which can be settled exhaustively once and for all, apart from the economic, cultural and social setting in which we as humans are confronted with injustices. In this sense, human rights are context bound as to their concrete content. Still, as legal norms human rights do, in some sense, simultaneously precede the concrete situations of specic individuals. In this, they show some of their character as ideals. From this follows an understanding of the concept of human rights primarily as a ‘verb’ and not as a noun, and a need to tie our mental image of human rights to practices rather than to an ‘essence’. This position is founded on some theoretical assumptions about values. As I indicated above, human rights do not ultimately exist in an extralegal ‘objective’ reality of values that we, in any exhaustive way, could gain insight in. Or point out to someone who doubts what we say in the same way as we, through empirical observation, can verify or falsify e.g. a claim that ‘the sun will rise at 06.30 o’clock tomorrow morning’, simply by getting up early next morning to observe the sunrise. On the other hand, what we may detect are certain elements that are usually entailed when we identify something as a human right, e.g. as a legal right, elements we consider to be somewhat constitutive and constant, at the same time as there is an ongoing discussion concerning other parts of the concept human rights. The assumptions that I make in my thesis about human rights builds on the idea that, lacking every type of conceptual rigidity, we would not be able to understand each other and identify ourselves with the claim of another human being that a human rights violation is occurring. I have made an attempt to understand what could be at issue here. The Human Being as a Social Being Of course, it does not necessarily follow from the recognition of the existence of the entity of human rights law, as a human product, that ‘human rights’ also somehow exists in an extra legal sphere. This poses a challenge not the least to a discussion in moral terms. What can we fall back on when discussing a moral dimension of the concept human rights? What I have observed is that injustices are framed in human rights language, for different reasons3, and that this ‘existing’ linguistic phenomenon can be studied. Among other things, it is in these expressions that I identify a moral dimension of the concept of human rights. I claim that a connection between something of value and something as a right is formed, when an individual himself conceives of something as a necessary good and formulates this in terms of rights. We may speak of an internal connection. Furthermore, I assume that a human being cannot ‘have’ a totally individual and isolated language, but that one develops a language in a community. 3

It can be a matter of expressing oneself through an internalized terminology, which helps us to conceive of the world. However, human rights terminology might also work as an instrument, with the help of which, ones message will travel far and be understood and afrmed by other actors.

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I wish to follow up on this understanding of the human being as a linguistic being, situated in a community. Contrary to some attempts to found human rights by way of empirical investigations, looking for convergences between human rights norms and ‘extralegal values’, I propose that the talk of something like human rights has to be understood in relation to the relations between individuals and other actors. Human rights are ascribed to or denied human beings; they are afrmed and promoted or violated. This is also why I want to speak of the concept human rights in terms of a ‘verb’ and not a noun. It is impossible for an individual to live a satisfactory human life without a human community, which afrms the individual in different ways. This assumption follows from the observation that individuals do not choose to be social beings, but are social beings before developing individuality. In turn, this assumption, builds on, among other things, the assumption that the human being is born into a human community, in which through interaction and continuous social interchange with the surroundings the individual learns the language of the community – including a moral language – through which a person understands and interprets their life. Language is here understood in a more wide-ranging sense than solely as a specic spoken language like ‘Swedish’, namely as entailing both speech and other human practice. This background, against which human life is acted out, might be called a ‘narrative’ or a ‘horizon’. Individuals cannot place themselves outside this context in any absolute way, although the ‘project of modernity’ wants us to believe that our identity is entirely the result of our own actions. What then becomes an issue here is how to understand the idea of the autonomy of the self (a central question in both the human rights discussion and that of theological ethics). This autonomy, in turn, is for its own part, as a moral autonomy, a prerequisite for ascribing responsibility to a person. When an individual criticizes features of his own tradition and community, this is done with the help of concepts found in that community. However, this is not solely true and I have rejected a view of the individual human being as a passive subject, whose life is totally determined by the community. Instead, I have attempted to understand her as co-creator of her own reality. Furthermore, by following up on Küngs, among others, thoughts on religious dialogue, I have argued for the possibility of conversations across ‘linguistic borders’. In this encounter with ‘the different’, a person may receive impulses which will be integrated into their own understanding of reality. I have argued for the possibility of ‘a fusion of horizons’ which allows for innovative perspectives when it comes to articulating an understanding of the community in which one lives. Furthermore, this means that we can not, from the outset, dismiss talk in human rights terms as not genuine in relation to a certain context of values, as sometimes seems to be the case. A Situated Talk of Rights I have contrasted this ‘embedded self ’ against a notion of the human being as in some respects isolated, which seems to have dominated not only much of theological and

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philosophical discussions, but also marked legal discussion. To return to my analysis of the concept human rights, it is against this theoretical background that I want to understand talk of human rights, and against which I criticize certain lines of thought in human rights theory. It is these relationships between embedded selves and other actors that one, simplifying the matter somewhat, attempts to capture and normatively describe through legal and moral language. In parts of my thesis, I make an attempt at describing how legal formulations of rights explain the mentioned relations normatively, thereby presenting core elements of a legal human right: a legal subject, a legal object, and a duty-holder. I have also characterized existing human rights law. At the same time, I believe that the description of reality that the law offers falls short, when it comes to capturing all actual relationships that need to be taken into account if a ‘right’ is to be fully realized. This latter remark stems from the recognition that a legal right/human rights law not only wants to address a human community, but also exists in that same community. Therefore, a number of different duties on the part of different actors support each other in the protection and realization of a right as proposed by a legal instrument. In order for a right de iure to become a right de facto, a reality, these further relations need to be taken seriously and addressed, including among other things some sort of individual responsibility. This allows for a critical perspective on common perceptions of human rights law. In my thesis, I argue that the talk of human rights does not necessarily coincide in every respect with what can be determined to be the strictly legal rules of the game, with what it is ‘legally possible to say’.4 Human rights are often appealed to in situations where one lacks the legal foundation for talking of something as a human rights violation. Here the dynamic of the concept human rights shows itself. I have noted different points at which human rights law is rather challenged, at the present, as to its current form. I have noted that many people and groups that this law is intended to protect (in theory ‘everyone’) do not necessarily see that the law succeeds in meeting them and their reality in the way intended (as I stated, the law wants to address a human reality). At the same time, these people speak, and want to speak, in terms of rights. The law represents something in the consciousness of human beings, which we may perceive as a reason for a talk of human rights being widely spread in the world of today. It is seen as reaching beyond particular contexts. It personies some sort of ‘objective truths’, a unity. Human rights law forms a solid basis to stand on in a late modern globalized world, where the spotlight is often placed on difference. Talk of human rights becomes a way for people to articulate something of moral signicance, which at the same time may serve as a critique of how human rights law is interpreted. The question is, though, whether these observations are of importance, in the sense that we have to pay attention to them when trying to 4 Even in the age of globalization, when the nation-state is to some extent loosing its inuence, human beings continue to articulate themselves in terms of human rights. This is done despite the fact that the claim is not primarily directed against a state, the actor traditionally designated with the task of guaranteeing what we call human rights.

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understand the phenomenon of human rights. Alternatively, do they fall outside the realms of what we need to discuss? Linguistic Boundaries I have shown that legal human rights language has its limitations. I have, among other things, studied how and to what extent an idea of individual responsibility is articulated in human rights law. I have conrmed that individual responsibility is an issue here, as human rights law afrms that the individual, who is prescribed certain rights, lives in a human community that has to make his existence possible in the way human rights law asserts. Nevertheless, this individual responsibility must today primarily be located to an extralegal sphere, and especially a moral one. However, one has to show caution here, since law and morals are not analogous phenomena. There are important differences between a rights claim, e.g. a claim that one has a (subjective) right to physical integrity, and some sort of moral demand to safeguard the life of another individual in a certain situation. This leads me, at times, to question any talk in terms of rights as the correct way to describe a certain situation. I point at the limits of what I have called ‘the legal metaphor’. A legally justied claim to a human right presupposes that the one or the ones to whom the claim is directed can meet it and fulll their obligation. A ‘must’ presupposes a ‘can’. This logic is not transferable onto the phenomenon of morality. As moral persons, we not only feel obligated to do what we can reasonably do. We may also feel guilt for something over which we have no power, for that which we could not manage or for which we could not reasonably be held (legally) responsible. This would be to belittle a profound moral experience; to limit that for which a person can feel responsible to that which he can actually do. Furthermore, to talk of something as a moral right is misleading when it comes to conceiving morality. I have argued in this thesis, with the support of Küng, among others, that it is the person himself that has to realize that he has a responsibility, in order for us to be able to speak of a genuine taking of moral responsibility. I have not questioned as to whether people articulate themselves in terms of human rights when they want to make a moral claim. Neither do I want to go as far as to say that this would be a misuse of language. However, what I have argued is that we ‘as spectators’ cannot take for granted that if there is a reaction to a claim, this reaction is necessarily a moral one.5 It is therefore unsatisfying to speak in terms of rights claims and correlating duties here. This has led me to criticize the attempts of various theorists to conceptualize an ‘extralegal’ talk of human rights, as to its moral constituents, in a way that make law and morals seem analogous. Despite these limitations to the legal metaphor, the concept human rights cannot, however, be reduced to being made up only of a legal dimension. And in my thesis I have wanted to formulate an understanding of what it, despite everything, could mean to 5 Another situation might be that a human being may describe a situation they are in, and the way they are supposed to react, in a way that leads us to believe that they acknowledge the situation as morally laden.

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react as a moral person to something as a human rights violation, and to take responsibility e.g. by joining one of the campaigns of Amnesty International in support of a political prisoner. I have, moreover, tried to understand what it could mean that people within different ‘cultures’ de facto articulate themselves in human rights terms when they believe that a border between what is human and what is inhuman is being crossed, in relation to themselves or someone else. I have also articulated an understanding of how we may comprehend the fact that these people believe that they can do this as religious beings, e.g. as a Muslim or a Roman Catholic, that they are being supported by their own belief. A Linguistic Overlap Because when we talk about an individual responsibility or duties, the question of the legitimacy or moral validity of human rights comes to the front. Human rights law, in its legal formulations, shows an openness to cultural and religious sensitivity, e.g. via a so-called margin of appreciation. By this, human rights law presents itself as being partly open to interpretation. But starting from my understanding of language, and from an, in some sense, external perspective on legal discourse, I claim that we are dealing with interpretation on a deeper level than human rights law makes pretence to. (This is also why legal positivist and constructivist understandings of the validity of human rights fall short in their attempt to capture a moral dimension of this validity.) This becomes especially apparent if we study how an individual perceives of a talk of human rights, and embraces or rejects it as a way of articulating himself about human life. Here I return to what I mentioned earlier about the role of the context, for our language, our human perceptions, comprehensions and actions. I have studied the role of the narrative, and especially that of a religious narrative, in relation to the individual as a moral agent, and what can be perceived as a legitimate expression of how life is envisioned. That is, I assume that law, morality and religion are related to each other when it comes to human rights, and I have wished to conceptualize this relationship. Here, the project of Hans Küng has served as a catalyst for my discussion, since he underlines the importance of the narrative, in the sense of meaningfulness, for a person’s (e.g. a believer’s) moral convictions and actions and for what this person considers legitimate. Küng points to an overlapping in substance between human rights law and the attempts of different beliefs and life views to formulate a basic understanding of how one should relate to human beings. The possible anchorage in a view of life may, then, according to Küng, support people’s motivation to promote human rights as descriptions of human life that conform with/express their own convictions.6 I have sought to formulate this point by stating that human rights law overlaps 6 This awareness of a moral ‘foundation’ is further supposed to open up the possibility to complement the legal discourse by emphasizing the dimension of individual responsibility that is ultimately given with human life itself, and which stretches beyond those duties that can be captured within the frames of a strictly legal understanding of human rights. What is proposed is a contribution to a more comprehensive formulation of what it means for a human being to take responsibility.

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with a larger context of meaning. Because of this, when someone assumes that his human rights have been violated, or claims that someone else’s rights have been violated, this is done against the background of the frame of reference offered by the context one forms part of, socially, religiously etc. Here, an internal linkage may exist between the use of human rights language and the moral convictions one has. It is also not necessarily the case that the concept human rights is ‘only’ morally laden. There might be, as it has been shown, a case where someone talking in terms of human rights is expressing himself as a moral person and a religious being. From this follows, that it is problematic to maintain an idea of human rights as religiously neutral. The phenomenon of religion tends to be a source of puzzlement in human rights circles. One tries to come to terms with the relation between the phenomena of religion and human rights, understood as two independent entities, by creating a space and identifying a legitimate place for religious confession and praxis within the frames that human rights law set up as a guide for different aspects of life in a society. However, the idea of neutrality risks, as stated, making us blind as to how a talk about human rights functions. Taking Responsibility My interest has been to show how the boundaries of language stretch on the level of the individual, when it comes to the concepts human rights, religion – and morality. To this, I also want to link my critique of the rational overtones of a talk of something as justied moral rights. Here morality becomes understood as, among other things, something fundamentally external in relation to the moral agent, with rights seen as something demanding respect and which individuals can embrace as valid on strictly ‘rational’ grounds. Instead, throughout the thesis, I have claimed that morality ultimately escapes our attempts to capture it by formulating, e.g., some sort of universal rules, which would, hopefully, guarantee correct action. Nevertheless, rules are, among other things, a way for human beings to try to put into words what it could mean to be a moral agent7. A responsible attitude is primary. I further claim that the concept human being, like human life, is inevitably morally laden. Morality is about responding to this circumstance. This response does not take place independently of the context in which the situation 7

Cf. Mikael Lindfelt, Autonomi, Tradition och Självförverkligande. Tre artiklar om etik och livsåskådning (Åbo Akademi University, Åbo, 1999) at 26-27. In the thesis I have proposed an understanding of moral norms, and other norms, as people’s formulations ‘of what they conceive of as a good and desirable way of acting, marked by ethical responsibility’. For the Swedish citation, see ibid., at 26: ‘av det som man uppfattar som ett gott och eftersträvansvärt förhållningssätt, kännetecknat av etiskt ansvar’. The main point of interest, when a dialogue is carried out from a so called third person perspective, should be to ponder on what distinguishes a human being as a moral person, rather than trying to legislate about right conduct. In chapter 4.4 of the dissertation I have argued that the task is to solve concrete misunderstandings rooted in blindness, thoughtlessness, prejudices etc., to reect on ourselves and our lives in community with others. Cf. Charles Taylor, Sources of the Self. The Making of Modern Identity (Cambridge University Press: Cambridge, 1989) at 3-4, 14-15; Jaana Hallamaa, The Prisms of Moral Personhood. The Concept of Person in Contemporary Anglo-American Ethics (Luther-Agricola-Society: Helsinki, 1994) at 239.

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has occurred and which now demands that a stand is taken. As I have pointed out, human communities, e.g. cultural and religious ones, are dynamic and a talk of human rights may form part of a battle for a denition over a situation between persons who, in a sense, belong to the same community. Someone will claim that a human rights violation is occurring, while someone else will hold that what is happening is according to law or an expression of, e.g., a ‘genuine’ religious practice. However, understanding ‘human being’ as a morally laden concept simultaneously means that the morality is not relative as to its content, despite the fact that the talk of human rights is context bound. I have argued that what constitutes a human right is not necessarily arbitrary in the sense that the validity of the right in question is solely of a legal kind, as the right has come about in a formally correct way. That human rights play a vital role for an individual in a moral sense is possible, albeit not self-evident. I want to suggest that the moral ‘point’ is whether or not the individual really recognizes and lives up to what, e.g., human rights norms call attention to, and whether the individual in his actions pays attention to his fellow humans and their rights. To respect human rights could thus be conceived of as an aspect of what it means to be a moral person (and religious being) in today’s world.8 Because as I have stated, a talk of human rights may play a role in people’s lives in different ways, irrespective of legal back up. When we say that someone is being tortured and reject this practice, the reason is not that torture is forbidden in e.g. human rights law. Articulating ourselves precisely in terms of torture implies that the action in question is also morally reprehensible. Our words express repudiation. In taking a position, we are involved as moral persons. If someone, then, wants to contradict us, claiming that torture is acceptable in the context at hand, consistent e.g. with how a person suspected for having committed a crime is treated, we would not accept this explanation thinking ‘well, we have different values’. Instead, we would argue that the person claiming such a thing does not recognize that he is standing face to face with another human being.9 The primarily ‘normative’ on our human relationships is not certain legal or moral norms but the encounter in which we are confronted face to face with our common human frailness and need for mutual support. I want to end with a quote from the book Waiting for the Barbarians by the South African writer J. M. Coetzee, and complement this quote with some thoughts from an article by Joseph Slaughter. We encounter an old magistrate, who, because of the strategic location of his town, nds himself having to relinquish the leadership of the town to a colonel, Colonel Joll, who has been sent, 8 I claim that it is something of this kind that Küng wants to capture with his global ethic project when he underlines that the concept of duty is internally linked to our human existence and the responsibility given with life itself. That is also the reason why I have found it fruitful to discuss his argumentation, even though it at times shows deciencies. 9 This is connected to what I argue in the last part of chapter 4 of the dissertation. By formulating oneself in human rights terminology, one wants to express something, which is entailed in ones understanding of the life in community with others. By articulating oneself in terms of human rights, one wants to underline that what is claimed for oneself or someone else is something of fundamental and constant character, something, which cannot be the object of compromise without standing out as unacceptable.

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with his division, to take control over the tribes living in the outskirts of the town. To this end, the colonel does not shun any morally dubious methods, something which does not go unnoticed by the magistrate, the narrator. When I see Colonel Joll again, when he has the leisure, I bring the conversation around to torture. “What if your prisoner is telling the truth,” I ask, “yet nds he is not believed? Is that not a terrible position? Imagine: to be prepared to yield, to yield, to have nothing more to yield, to be broken, yet to be pressed to yield more! And what a responsibility for the interrogator! How do you ever know when a man has told you the truth?” “There is a certain tone,” Joll says. “A certain tone enters the voice of a man who is telling the truth. Training and experience teach us to recognize that tone.” “The tone of truth! Can you pick up this tone in everyday speech? Can you hear whether I am telling the truth?” This is the most intimate moment we have yet had, which he brushes off with a little wave of the hand. “No, you misunderstand me. I am speaking only of a special situation now, I am speaking of a situation in which I am probing for the truth, in which I have to exert pressure to nd it. First I get lies, you see – this is what happens – rst lies, then pressure, then more lies, then more pressure, then the break, then more pressure, then the truth. That is how you get the truth.” Pain is truth; all else is subject to doubt. That is what I bear away from my conversation with Colonel Joll (…).10

In an apt way, the conversation between the magistrate and the colonel shows how torture is an act that objecties the victim, the other. The torturer breaks down the self-image of the victim by breaking down his language. The language of the tortured is replaced by the language of the torturer. The answers that the tortured gives are the answers the torturer wants to hear.11 By breaking down the language, the whole of reality is broken down: the understanding (not only of the cognitive kind) of the world around oneself, of the interaction with fellow humans, the understanding of the self. That which has been self-evident, that which has been meaningful in a kind of unreective way, is now questioned. In torture this doubt is radicalized, the mistrust is systematized. Torture amounts to an ultimate denial of the fact that one is confronted 10

J. M. Coetzee, Waiting for the Barbarians (Vintage: London, 2000) at 5. ‘The report he makes to me in my capacity as magistrate is brief. “During the course of the interrogation, contradictions became apparent in the prisoner’s testimony. Confronted with these contradictions, the prisoner became enraged and attacked the investigating ofcer. A scufe ensued during which the prisoner fell heavily against the wall. Efforts to revive him were unsuccessful.”’ Ibid., at 6. 11 Joseph Slaughter, ‘A Question of Narration. The Voice in International Human Rights Law’, Human Rights Quarterly (1997) 406-430 at 425-428.

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with another human being, and to a destruction of her/him as a person. As Slaughter notes, this course of events does not leave the torturer unaffected. The torturer is relegated to an instrument of oppression and the personal dignity as a human being is soiled.12 In the encounter with the other, we are required to take a stand. It is impossible to ‘remain’ neutral. Our attitude can be a moral one, entailing a protection of the life of the other in the way demanded by the situation, or a violation not only of the other and his so called rights, but ultimately also of ourselves.

12

Ibid., at 428.

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MÄNSKLIGA RÄTTIGHETER, MORAL OCH RELIGION. OM DE MÄNSKLIGA RÄTTIGHETERNA SOM MORALISKT OCH JURIDISKT BEGREPP [HUMAN RIGHTS, MORALITY AND RELIGION – ON HUMAN RIGHTS AS A MORAL AND LEGAL CONCEPT IN A PLURALISTIC WORLD]. By Pamela Slotte. Doctoral Dissertation, Åbo Akademi University, 2005. I hereby submit my opinion concerning Pamela Slotte’s doctoral thesis Mänskliga rättigheter, moral och religion and about the public defence of the thesis on 5 December 2005. The opinion consists of two parts: 1) My concluding opinion delivered as a summary during the presentation of the thesis, and 2) additional comments after the public defence. Concluding Opinion The doctoral thesis of Pamela Slotte, Mänskliga rättigheter, moral och religion. Om de mänskliga rättigheterna som moraliskt och juridiskt begrepp i en pluralistisk värld, brings a subject up for discussion that is of great interest at both a theoretical-scientic and a practical-political level. She deserves to be complimented for the choice of research project. Because of the interdisciplinary character of the project, it has been necessary for Slotte to work with problems and material from the elds of human rights research, legal and moral philosophy, and theology. The research effort of the doctoral candidate has been great, impressive and energetic. It has resulted in a voluminous and comprehensive thesis. I have noted that, on occasion, the thesis could have been somewhat less wordy and more condensed. The rst main part of the study offers a thematic introduction to the understanding of human rights. This is done through a survey of more recent contributions to that debate by human rights research carried out in the elds of legal, philosophical and political sciences. A great amount of literature is identied and analyzed, and made the object of thorough discussion, critique and constructive further elaboration. Already the survey of existing material is valuable. But the presentation sheds useful light on core problems in the eld, problems that concern the distinctive character of human rights, their function and justication. Slotte, however, does not content herself with giving an account of the discussion. She continuously enters into dialogue with the presented points of view. In the second main part of the thesis, the doctoral candidate delivers a contribution to research on the ethics of Hans Küng. She especially concentrates on Küngs global ethos-paradigm. Here, as well, Slotte shows good knowledge both of the primary sources of Küng himself and of the extensive secondary literature about the mentioned concept global ethos. That Slotte emphasizes the study of the thinking concerning a global ethos against the background of other fundamental elements of substance in Küngs theology shows itself to be an interesting and constructive approach. Special attention is given to the connections that exist between Küngs ethical program and his view of the signicance of religion for morality.

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The third and last main part of the thesis is, in a sense, the most creative on Slotte’s part, in that it focuses on the relationship between the global ethos-paradigm and human rights thinking. Here, the perspective is narrowed and centred to deal with especially two main aspects. The rst concerns the question of how one, in light of the two perspectives, can reach a deeper understanding of the moral responsibility and obligation of the individual for the ‘human life’ of others. Secondly, the question is raised whether it is possible to ethically legitimatize law and human rights in a world that is religiously and ethically plural. This part is characterized by Slotte’s own reections in dialogue with other contributors. The three main parts of the thesis are framed by an introduction and a concluding discussion and summary, just as is expected of an academic dissertation. All important demands for scientic accuracy are met. Above, I have taken advantage of the opportunity to pose some questions. Some of these questions have arisen from the need for specication and clarication of a statement or the use of a concept. Some of the questions have aimed at further consideration and possible elaboration. Other questions have been of a more challenging and critical character. I have missed a more unifying formulation of the problem and answer to the same. As far as the presentation in each of the main chapters goes, I have occasionally inquired after aspects relating to the content. In one case, I have indicated a somewhat different reading of Küng (but I am no criterion of truth). I have challenged the doctoral candidate as to the understanding of theological ethics. Finally, I have pointed out some technical deciencies and errors in the list of abbreviations, the bibliography and the footnotes, as well as misprints. The last goes to show that not even this doctoral candidate is perfect. Slotte does not claim to have said all there is to say about the subject. However, she has provided a substantial contribution that further research should relate itself to. I therefore conclude that Slotte has produced a work that I recommend be accepted as doctoral thesis. The thesis is of high scientic value, and she herself, her supervisor and advisers, and the Faculty of Theology at Åbo Akademi University can be pleased. Additional Comments after the Public Defence As mentioned above, at the occasion of the public defence I noted the need for specication of single concepts central to the thesis (for example term/concept, pluralism and moral/ethical). Furthermore, I brought up some sub themes in the hope of attaining greater elaboration (the basis for her own position, elements in human rights and the possibility to deduce these rights from the dignity of the human being, Küngs inclusive thinking about religions and about ethical consensus etc.). In addition, I made some critical remarks (repetitions, side-discussions, the question about phases in Küngs authorship, the absence of a distinct theological perspective in the thesis etc.). In my opinion, Slotte was well able to understand the content of the remarks and points of view that were presented by me as opponent. It also has to be said that she,

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on the whole, gave good and relevant answers, even if some of them could have been more detailed and elaborated. My impression is that the doctoral candidate accepted the remarks about some technical errors. The overall impression is that her defence of the thesis was satisfactory. Professor Lars Østnor, MF Norwegian School of Theology, Norway

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FROM UTOPIA TO QUINTESSENCE: EDUCATION LAW FROM THE VIEWPOINT OF ROMA AND SKILLS DEFICIENCY Päivi Gynther In the Europe of today, the realization of everybody’s right to a certain minimum of education is commonly taken for granted. It appears irrelevant or marginal to question the coverage of our comprehensive education systems. In the present thesis, this presumptive view is problematised from the viewpoint of teenagers and adults having basic skills deciencies. The thesis seeks from international standards the quintessence, the very core, of a sound, non-discriminatory and inclusive legal framework on education. The ultimate aim is to investigate the kinds of guidelines international law offers for domestic legislatures in their efforts to create education systems that are reective of demographic changes in the population. The dissertation is made up of three parts and ten chapters. Part I presents the purpose and scope, the analytical starting points, and the methods of the study. Basing itself on the breakthrough of performance measurement systems in promoting good quality education, the study suggests that even in its initial stages, education should be provided that progresses resolutely towards clearly stated and generally recognised aims, and that is accredited as part of the national qualications framework. It is argued that the trend of credentialling, discernible worldwide, can have severe exclusionary effects unless the state explicitly safeguards that its education system is not biased against some parts of the population. Another introductory point concerns the Roma population of Europe, a population commonly described as suffering from educational marginalisation and therefore chosen as the prime case for the study. As the notion of Roma is undened in legal terms, the study explores whether Roma are covered by international provisions that protect the separate existence of minorities with epithets such as ‘national’, ‘ethnic’ or ‘linguistic’. People labelled as Roma fall to several legal categories, whereby more than a few international instruments become applicable in the search for their right to quality education. UN instruments on indigenous peoples are excluded from the analysis, in spite of their comprehensive provisions on education rights, due to the fact that Roma do not enjoy the status of indigenous peoples in any European state. Diverging from earlier academic research that has focused mostly on education at primary and university levels, the study concentrates on the levels that can offer a pathway forward for those individuals that have experienced exclusion from the formal education system. The argument goes that the goal of education towards a self-sustainable life is invalidated if the rst rungs of the ladder of knowledge from *

This is an English summary of the doctoral dissertation which was defended in Swedish at Åbo Akademi University, 1 September 2006. Professor Manfred Nowak from the University of Vienna, acted as the opponent.

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literacy and language prociency up to generally qualied vocational training are not guaranteed for all. The problem statement reads: ‘What support does international human rights law provide for arguments that domestic education law discriminates against Roma in access to vocational qualications?’ The study perceives the law of education as a system of its own, as a functioning whole, though not necessarily consistent and well ordered. As both research and jurisprudence appears to be unsystematised in this respect, the study creates an analytical framework that enables the identication of biases and lacunae in seemingly neutral educational legislation. The analytical framework, called the 4R Scheme, developed by the author, emphasises the necessity to focus not only on the established dichotomy of rights and corresponding duties, but also on whose rights are taken into account and whose voices are heard when the substance of education is decided. The simultaneous analysis of rights, recognition, resources and representation aims to highlight how awed legislation may have a cumulatively disadvantaging effect in addition to the fact that each aspect can contain discriminatory barriers on its own. The research material consists of 26 contemporary standard-setting instruments of the United Nations, the Council of Europe and the European Community. These instruments are applicable either to all Roma in the name of their universality or to those Roma that fall into legal categories such as state citizens, national minority members, migrant workers, refugees, asylum-seekers etc. The analysis focuses on instruments that are considered legally binding, but when the hard-law remains silent, light will also be shed on legally non-binding instruments. The cross-examination of different international regimes is necessitated as states that have agreed to be bound by them need to take into account all of them. Part II of the study thematises positive international law at the universal and European level in line with the four aspects of the analytical framework, i.e. ‘rights’, ‘recognition’, ‘resources’ and ‘representation’. By outlining the outer limits of the liberty of action for state parties, an attempt is made to establish when, according to international law, a state fails to provide a sound legal framework in the educational sector under examination. Rights

The exploration of the rights aspect reveals that international codication is low or nonexistent when the achievement of a minimum level of skills, instead of mere access to education, is in focus. In order to make the lowest rungs of the knowledge ladder visible, the rights aspect is divided into the elements of basic skills, language skill, vocational and cultural skills, each relevant for educationally marginalised individuals. The rst controversy concerns whether the right to basic education is exclusively for children or whether it is for adults also. Some international standards distinguish between ‘primary’ and ‘fundamental’ education, while others make use of notions such as elementary or basic education. In contrast, for instance, to the Central American regional instruments, binding European law does not contain provisions on adult basic

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education. This, however, is considered not to allow for contracting states to overlook injustices faced by the educationally most disadvantaged individuals, as generally worded provisions, such as ‘No person shall be denied the right to education’, are interpreted as also including protection of adult basic education. Concerning the question of whether some minimum language skills are acknowledged as belonging to all human beings, neither UN law nor the European standards contain any unqualied right to language acquisition. International binding instruments hardly pay any attention to situations where individuals do not speak or understand ofcial language(s) of their country of residence, nor to the situation of individuals belonging to linguistic minorities that are not accorded national minority status. Instead, two approaches to linguistic rights are discernible, one emphasising language as part of national minority rights, the other one as an abstraction of linguistic diversity that should be promoted for its own sake. In both approaches, multi-lingualism is applauded in general terms, whereas semi-lingualism is overlooked as a cause of anxiety. Vocational skills acquisition can be shown to be a relatively unregulated area in binding international law. Indeed, the examined instruments and their interpretative documents differ as to how the very concept of vocational education should be comprehended; some suggest that it should be seen as part of primary education, others that it extends even to university courses. An exception is the UNESCO Convention on Technical and Vocational Education,1 which denes the concept at issue pragmatically as including the acquisition of practical skills and know-how relating to various occupations, and also expressly covers individuals from diverse disadvantaged groups. However, 17 years after its adoption this instrument has only 15 state parties of which only two are from Europe. Concerning individuals in vulnerable situations, a recent EC directive requires that vocational education shall be offered to beneciaries of refugee status under equivalent conditions to nationals, but nothing is stipulated about preparatory training as a prerequisite for successful integration to the mainstream vocational education. Among many vocational clusters, the study draws particular attention to the right of an individual to acquire and develop the cultural skills of her or his choice. A suggestion is made that, in order to avoid traps of essentialism, the right to cultural skills should cover all the vocations that in the national educational classications fall in the eld of culture, ranging from minority culture and folklore expertise to museum and library professionals, photographers, journalists, and the like. Nevertheless, the international norms under examination predominantly either recognise culture as an abstraction or acknowledge the rights of members of national minorities to maintain and develop their culture, whereas nothing is stipulated about an individual right to skills acquisition that leads to professionalism in the cluster of culture. The fact that a considerable number of international instruments recognise the right to education in generic terms – without making distinctions between different 1

Convention on Technical and Vocational Education, Paris, 10 November 1989, in force 29 August 1991, 1649 United Nations Treaty Series 143.

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types or levels of education, nor between different legal categories of rights-holders – is interpreted in the study as giving recognition, as a minimum, to everybody’s right to basic skills. All things considered, international law is argued to support a holistic conceptualisation of the core of the right to education that pays due respect to all the elements under consideration, that is: basic literacy along with linguistic, vocational and cultural prociency. Recognition

The recognition aspect focuses on the question of how international law guides states to identify the subjects of educational rights under their jurisdictions. The power to name and dene and correspondingly, the power not to name and dene certain groups and categories of society is discussed rst, in order to clarify how biases in this respect may establish multiple oppressive situations for some parts of the population. A number of provisions and landmark cases are identied as tools against non-recognition: binding UN standards that set forth an explicit right to recognition as a person before the law, and recent European case-law that acknowledges the right of individuals in signicantly different situations to be treated differently, are both considered to put pressure on states to recognise in a sophisticated manner the legal subjectivity of individuals under their jurisdictions. Nonetheless, some parts of European law offer escapes for those states that prefer the policy of non-recognition in education. The anti-discrimination clauses of international instruments are a specic set of provisions that principally should guide states not to sideline educationally disadvantaged individuals above compulsory school age as a category of concern. The instruments under analysis contain some 20 enumerated grounds for non-discrimination altogether, from among which the study picks the attributes of age, language, gender and ethnicity for closer examination. Discriminatory non-recognition or mal-recognition in terms of each attribute is rst dened as ageism, linguicism, genderism and ethnism, whereafter follows an examination of what international law says about the right to be correctly identied in each respect. With regard to age, the binding standards are shown to leave ageism in basic education without a separate reference. Quite the reverse, even the Convention on the Rights of the Child2 – although principally dening every human being below the age of eighteen years as a child – leaves a loophole that enables the non-recognition of teenagers above the minimum employment age as subjects of basic education. The pertinent European standard, the European Social Charter3, also contains a clause according to which it does not imply an obligation to provide compulsory education up to the age of eighteen. The most recent European Community directives cover 2

Convention on the Rights of the Child. New York, 20 November 1989, in force 2 September 1990, 1577 United Nations Ttreaty Series 3. 3 European Social Charter (revised), Strasbourg, 3 May 1996, in force 1 July 1999, European Treaty Series No. 163.

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ageism in vocational education, whereas age-bound discrimination in respect of basic education remains unregulated. As to language, recognition of linguistically decient individuals is on the whole left to the discretion of states, which coincides with the very fact that international law is blurred as to who should be considered to be subjects of linguistic rights. Consequently, space is left for state legislatures to disregard the most elementary language deciencies and the language learning needs of individuals coming from the educationally disadvantaged segments of the society. Yet, seeing that universal antidiscrimination clauses recognise language relatively often as an unreasonable ground to justify discrimination, the study suggests the reading of the non-discrimination clauses and the substantive provisions together, and on that basis demands equal recognition of rights-holders from diverse language groups before the law of education. In respect of the recognition of skills deciency on grounds of gender, both universal and European instruments are there to stipulate on the equality between male and female as subjects of the right to education. The effect of these standards on the maintenance of gendered categorisation in education is apparent and justied as such. However, the fact that states are called to draw on the binary opposition leaves those individuals who consider themselves as falling between the male-female duality without a change to be accurately classied. Moreover, the fact that both the universal and the European instruments stipulating on gender equality are based on the idea of privileged male and disadvantaged female may contribute to the leaving illiterate, language decient males in the shadow. Ethnicity, the fourth and last attribute examined as ground for recognition, is a popular theme among advocates of the Roma right to education, and also frequently recognised as a ground for non-discrimination in international instruments. As drawbacks, some instruments and their interpretative documents not only tend to simplify the conception of Roma, but also to equate the Roma population, in all its diversity, with educational backwardness. Consequently, they may engage in the construction of difference as an end in itself and bolster polarisation and tension based on ethnicity. The study highlights discourses according to which the European minority rights regime as such is a system of rights in which some groups are privileged at the expense of other groups. Seen from the viewpoint an individual’s right to be correctly recognised, binding international law makes clear that the collection of ethnic data is acceptable only insofar as the identication of ethnic origins is made on the basis of a voluntary declaration. The exploration of the recognition aspect is concluded by arguing that enumerative anti-discrimination clauses of the international standards are partly responsible for the construction of categories that are recognised by domestic legislatures, and for the respective unconcern about those that do not t in. As a way forward, the study suggests that states should move on to the recognition of the functional skills deciency of educationally disadvantaged individuals irrespective of their particular group afliations.

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Resources

The resourcing aspect, dealing with duties imposed on states, is explored in two subaspects. First, a distinction is made between state duties to fulll the right to education as a universal right and state duties vis-à-vis minority educational rights. The duty to fulll the core content of the right to education for everybody arises from general human rights clauses, according to which state parties undertake ‘to achieve progressively the full realization’ of the right to education, and ‘to encourage or intensify as far as possible’ fundamental education. As these provisions leave somewhat unclear what the state obligations with regard basic education above compulsory school age are, the study calls special attention to a key provision that prohibits limitation of any person or group of persons to education of an inferior standard, and to an interpretation according to which the distinction between the promotional approach on the one hand and the violations approach on the other as such is untenable, because of the fact that the failure to promote is a violation per se. As regards state duties in respect of the provision of some minimum language skills, both universal and European case-law exist that clarify how vague provisions on linguistic rights and corresponding duties should be interpreted. Accordingly, no arbitrary or unreasonable preferences are considered as permissible in domestic language policies. The same should apply to the state duty to provide on equitable grounds vocational or cultural education that leads to generally recognised qualications, even if there is no international case-law on these areas. On balance, state duties in terms of the provision of education should be dened with the doctrine of interdependency, interrelatedness and indivisibility of all human rights in mind. Still concerning the redistributive power of the state, the study examines in detail what kinds of positive obligations lay dormant in the Convention against Discrimination in Education (1960).4 Three different sets of duties are identied, namely the state duty to establish a non-discriminatory educational infrastructure, the state duty to accommodate for differences, and the state duty to take action to eliminate conditions that cause or maintain educational deprivation. These duties are suggested to make the state responsible to continuously contest assumptions of the education law’s neutrality, and to ask which differences are taken for granted that, given changed circumstances, may serve as a justication for laws that neglect those already in a most disadvantaged position. The second sub-aspect on the topic of resourcing draws attention to the very conceptualisation of resources. The relevance of this dimension springs from vague provisions in UN law according to which a state shall demonstrate that it has used all resources at its disposal in an effort to satisfy those minimum obligations it has undertaken as party to international human rights law. As no answer can be found in the instruments under examination as to what is meant by ‘all resources’, the study denes this ambiguous notion as tentatively consisting of nancial, human, information and 4 Convention against Discrimination in Education, Paris, 14 December 1960, in force 22 May 1962, 429 United Nations Treaty Series 93.

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technology resources, and investigates how these four types are acknowledged in the norms under consideration. Beginning the investigation with nancial resources, international law is found to provide instruction in two dimensions. The rst concerns how the costs of education could be equitably distributed between the state and alternative education providers. In this dimension, a particularly important binding provision is the one that calls upon states not to allow in any form of their assistance to educational institutions any restrictions or preference based solely on the ground that pupils belong to a particular group. The second dimension of nancial resources concerns the cost-bearing capacity of individual students. According to pertinent UN standards, state parties undertake to establish an adequate fellowship system, and to progressively abolish fees or charges for any levels of education. European Community provisions contain no state duty to provide study assistance for individuals who move within the Community only for study purposes, whilst they shall receive equal treatment to the nationals of the host member state as far as enrolment fees are concerned. On this point, a tension is discernible between universal standards and European provisions, particularly as far non-European students in Europe are concerned. Human resources are addressed as an important topic of its own by reasoning that what individuals want to have is skills, and what is needed to receive useful skills is good instruction by competent teachers. Thus, provision of sufcient and nondiscriminatory teacher training is considered important for efforts aiming to halt the devaluation of marginalised individuals as subjects of education. A number of binding international provisions that concern state duties vis-à-vis human resourcing are identied. For instance, instruments concerning vocational education stipulate explicitly that teachers shall have appropriate teaching skills consistent with the type and level of the courses they are required to teach. In contrast, no legally binding international provisions oblige states to prepare teachers for teaching adults that suffer from basic skills deciencies. Where international law remains silent, the study suggests that a sound legal framework should recognise the need for qualied teachers to work with diverse categories of students, and that teacher education should be reective of the linguistic and cultural as well as age and gender aspects of this diversity. Information resources as the third resource type are viewed as playing a crucial role in efforts to eliminate assignment of some students to segregated education from where they have limited or no access to further education or adequate employment options. The state duty to give qualied and unbiased help in the choice of education and training appears indeed in several international standards. Most important is the European Social Charter, where vocational guidance exists as a separate, fully edged right. Accordingly, guiding assistance shall be placed free of charge at the disposal of all categories of individuals, both to young persons, including school children, and adults. A drawback of this provision is that it extends only to the nationals of the contracting parties to the European Social Charter. Last, technology resources are seen as an important potential to help educationally disadvantaged individuals gain access to quality education. It is shown that state duties

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relating to technology resources appear in the universal standards on the right to education as early as the 1960s. For example, the furnishing of technical cooperation and technical assistance are mentioned among the means of action for the achievement of economic, social and cultural rights. Likewise, state parties to the Convention of the Rights of the Child undertake to promote and encourage international co-operation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientic and technical knowledge and modern teaching methods. In contrast, European instruments, even the most recent ones, remain silent about open and distance learning or other technology-related resources as means for widening access to quality education for all, and about state duties in the provision of such resources. Representation

The representation aspect examines who, according to international standards, is expected to speak for those educationally disadvantaged individuals that legally are not in the state of minority. As a rule, the right to education is considered to include a parental right to represent their children below the maturity age. On the other hand, the right to political participation is typically acknowledged for individuals that have reached the age of majority and that enjoy the status of citizenship. More often than not, illiterate and language decient individuals above the primary school age fall outside any of these institutional arrangements. The study makes use of the ‘right to representation’ as a discursive concept against which it is explored whether states are called to ofcially impose any body to identify problems and formulate solutions relevant to these ‘in-between’ individuals. International instruments reveal the strongly-fragmented character of decisionmaking in the area under consideration. One scheme of ruling, a legal framework for tripartism, with selected trade unions, employers’ organisations and the state government as the three ofcial parties, is acknowledged within the regimes of the International Labour Organization and the European Community. Tripartite bodies participate, among other things, in the European-wide processes of standardisation of vocational education and training. A weakness of this scheme, seen from the viewpoint of multiply-marginalised young and adults, is the likelihood that strong negotiators pursue only the interests of their own group members and thereby may counteract the rights of the least competitive part of the population. As another scheme of ruling, the right of minority communities to speak for themselves is acknowledged within the European minority rights regime. Even this scheme contains weaknesses when seen from the viewpoint of the educationally most disadvantaged individuals, as it concerns predominantly different degrees of cultural autonomy of well-established minority groups. Even if a number of interpretative instruments adopted by UN and European institutions state that the effective participation of any minority communities in public life shall not be at the expense of others’ rights, wide latitude is left to individual states as regards estimation of which

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groupings among the population shall have their representatives in decision-making that takes place outside the system of parliamentary representation. The study identies as a specic area of concern the lack of representation of those illiterate individuals above primary school age who cannot speak for themselves because of a lack of skills in (any of) the ofcial language(s) of the state. In particular, European Community instruments permit member states to set special conditions for young people in order to promote their social integration, but stipulate nothing about the right of persons concerned to representation in educational decision-making. European minority instruments, for their part, call for the satisfaction of demands of national minorities, but young people from language groups that lack ofcial minority status can scarcely base representation claims on these instruments. Seeing that international provisions are inadequate in providing the educationally disadvantaged individuals and groups with a guarantee of representation, the study then introduces parens patriae authority, which implies that the state must care for those who cannot take care of themselves, and suggests that it is basically the disadvantaged situation of the individuals, rather than the specic attribute of childhood that gives rise to this type of representation. Even though international law puts no explicit pressure on the state to represent those teenagers and adults within its jurisdiction that lack the knowledge and the organisational power to make education rights claims of their own, an argument is developed according to which the parens patriae doctrine is justied by a holistic interpretation of international human rights law, at least in relation to the linguistically most disadvantaged persons below the age of 18 years. In the concluding section, Part III, the two earlier parts are brought together. First, the points of concern within each of the four main aspects of the 4R Scheme are analysed from a particular Roma perspective. As to rights, the main issue of concern is whether the very distinction between subjective and progressive rights is sufciently sensitive for those Roma aged 15+ that do not t into the seemingly neutral education system of the nation state. As to recognition, international law appears particularly inconsiderate regarding young people facing ageism in access to basic education, for dispersed Roma facing dormant linguicism behind notions such as ‘balancing of interests’, and for allochthonous Roma facing exclusion from being a part of those Roma with legally institutionalised national minority status. As to resources, a severe decit in the international instruments examined is that they enable ignorance of the call for progressively free basic education above compulsory school age, whilst states are obliged to provide free primary education and to progressively abolish fees for secondary and tertiary education. Moreover, seen particularly from the viewpoint of itinerant and geographically dispersed Roma, it is considered as a decit in European law that no single instrument addresses the use of modern learning technologies in support of remaking basic education for all an attainable goal. Finally, as to representation, a decit in international law is that none of the regimes examined is pressing for the necessity to include the needs of the educationally most backward individuals on the agenda of either the tripartite or the minority participation arrangements. The main task is not to create still new participation fora, but to open up

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ways to question the blindness of the dominant participation mechanisms to the issue of educationally most disadvantaged Roma in diverse legal categories. On the basis of examples of regulatory aws and voids that potentially have a marginalising effect on Roma, the study makes a call to disentangle clearly from each other two different strands in international law. When operationalising universal human rights provisions, the fullment of the right to adequate education is best promoted by drawing increasingly more attention to functional disability, and to corresponding data collection on illiteracy and other skills deciencies that can be remedied. In contrast, the minority rights regime should consistently be operationalised in the service of minority educational arrangements maintained by Roma themselves, similarly to the educational arrangements of more well-established minority groups. The idea of educational rights as genuine human rights should not admit of situations where they hold just for some and merely reify essentialism. Likewise, the idea of minority rights should not admit of situations where it is not possible to clearly distinguish those with from those without special rights. The argument goes that intermingling of these two strands undermines the very possibility of legally ensuring everybody an acceptable minimum of basic education. Finally, an answer is provided to the key question: When are state parties to international human rights law to be criticised for not having a sufciently sound legal framework to guarantee the implementation of the basics of good quality education for all Roma under their jurisdictions? The initial ambition of the study was to distinguish criteria for evaluating the soundness of domestic systems of education law on grounds of binding international standards, yet it results in a critique of international standards themselves. Nonetheless, the vagueness of international law is seen as an opportunity rather than as a hindrance, seen from the viewpoint that ideal system development is a process of domestic dialogues rather than something imposed from top down by unelected international bodies. In the face of the fact that binding international law is demonstrated to be silent on many critical points, the study suggests four responses to question why governance in adult basic education should shift from being merely a matter of politics to a matter of legally binding law. First, the guarantee of the right not to be discriminated against is particularly important in the issues of linguicism and ageism, which should not be left to the unregulated margin areas of education. Second, the guarantee of the inviolable right to a minimum education needs to be reective of changes in time and place. It is particularly in so-called knowledge societies where non-regulation can be seen as a circumvention of responsibility by the legislature before those whose basic educational rights are violated. Third, the guarantee of continuity calls for the law to be distinguished as a long-term measure from short-term afrmative actions that according to international law shall be clearly specied in terms of goals and terminate as soon as these goals are met. Fourth, the guarantee of responsibilities pertains particularly to those types of education that have seemingly least ‘market value’, as rights for the most marginalised people remain empty phrases without dening who is responsible for their fullment.

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The 4R Scheme developed in the study is to be considered a useful tool for diagnosing the soundness of a legal framework, even if international law ultimately provided less guidance than was originally anticipated. The value of the 4R Scheme is highlighted by a comparison to the latest strategy for equal opportunities of the European Commission, which involves the aspects of rights, recognition and representation, but totally disregards the aspect of resources and, instead, applies the notion of respect. The argument goes that such a lack of concern towards resourcing apparently maintains the exclusion of the most marginalised individuals and communities from quality education with proper functional value. Likewise, the concluding discussion restates the introductory statement, according to which literacy and language training programmes for educationally marginalised young and adults should also progress resolutely towards clearly stated and generally recognised aims, rather than remain non-certied and of more or less suspect quality. As its ultimate ambition, the study contributes to bringing John Rawls’ theory of justice from the world of values to the world of legally binding norms. The reader is called to consider the position behind the Rawlsian veil of ignorance of an illiterate Roma with neither sufcient language skills nor vocational skills with neither citizenship nor national minority status, and possibly even with no residence permit. The conclusion is that awareness of international standards, including ambiguities and lacunae within and between them, should call any responsible legislature to guarantee the minimum right to education for all, both in the constitution and in statutory law. In addition to two gures that schematise the research area and the analytical framework, the dissertation contains eight chapter-specic summary tables of provisions being examined, a bibliography of 392 references, a table of 45 international instruments, a list of 104 interpretative documents, a table of 80 legal cases, and an index.

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FROM UTOPIA TO QUINTESSENCE: EDUCATION LAW FROM THE VIEWPOINT OF ROMA AND SKILLS DEFICIENCY. By Päivi Gynther. Doctoral Dissertation, Åbo Akademi University, 2006. From Utopia to Quintessence seems to be an ambitious title for a dissertation. It shows the desire of the Respondent to make use of the lofty ‘utopian’ ideals of international human rights law in order to assess the daily situation of the Roma as a disadvantaged and discriminated group in the eld of vocational and fundamental education. The thesis deals with various topics. In the centre is the human right to education, one of the most important social and cultural rights, and the various obligations of States deriving from this right. Her focus is not on primary, secondary or higher education, but on the more neglected aspects of vocational and fundamental (basic) education, i.e. above compulsory school age. She also shifts the focus of her research from the usual input-oriented approach (equal access to education, its contents and, curriculum) to an output-oriented approach, i.e. looking at credentials or formal qualications as a means of quality assurance. Secondly, the thesis deals with discrimination, more precisely with systemic discrimination in education laws, both as direct and indirect forms of discrimination. She further discusses the topic of minority rights, both as collective and individual rights, and applies this doctrine to the Roma as a distinct group in Europe. She starts from the hypothesis that Roma are a disadvantaged group, and that domestic education law in various European States constitute systemic discrimination under European and international human rights law. In order to prove this hypothesis, the Respondent develops an analytical framework, called the ‘4R Scheme’. Part II of the thesis entitled ‘Validating the Frame’ is the centre piece of the dissertation (pages 78 to 253) by elaborating in detail this theoretical framework consisting of the ‘4R’; namely rights, recognition, resources and representation. The right to education is conceptualised as a right to basic, language, vocational and cultural skills; the recognition of rights-holders is understood as a right to recognition of age, language, gender and ethnicity; the resources are discussed in the framework of State obligations to provide human, information and technology resources in respect of basic, language, vocational and cultural skills in order to shift the right to education from quantity to quality; and in the chapter on representation the Respondent analyses the relationship between systemic discrimination and representation deciencies, between individual rights and collective power. On the basis of her four criteria (age, language, gender and ethnicity) as basis for representation, she nally develops ideas about new forms of governance as challenges for representation. In the nal Part III entitled ‘Contextualising the Frame’, the Respondent applies her analytical ‘4R’ framework to the law of education from the viewpoint of the Roma and concludes with remarks on the justication of her ‘4R’ scheme. The 347 pages of the book also include various gures and tables, a comprehensive bibliography, lists of cases, international instruments and interpretative documents as well as an index. On page 32, the Respondent compresses her main research question into the following single sentence: ‘What support does international human rights law provide

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for arguments that domestic education law discriminates against Roma in access to vocational qualications?’ In the opinion of the Opponent, this research question seems to be difcult to answer. The Respondent starts from the assumption, based on experience, that Roma are subject to discrimination in the eld of education in several, if not most, European countries. This is certainly a valid assumption: In various countries, Roma children are prevented from equal access to primary and secondary education, they often nd themselves in special or even segregated schools and they are subjected to several forms of discrimination by State authorities, school management and teachers, parents and fellow pupils. The disadvantaged position usually starts in primary school and hampers the career possibilities of Roma children. Whether such a disadvantaged position amounts to systemic discrimination in particular countries could be assessed by various indicators, such as primary and secondary school enrolment ratios of Roma children as compared to others, drop out rates, the percentage of Roma children in special schools such as schools for children with disabilities etc. But the Respondent is neither concerned with primary education, where discrimination usually has its roots, nor with such quantitative input-related indicators, but only with qualitative output-related criteria limited to vocational and fundamental education above compulsory school age (pages 12 et seq.). She starts from the hypothesis that certain European education laws relating to vocational education above compulsory school age (15 or 16 years of age) by aiming at certain formal qualications or credentials constitute direct or indirect systemic discrimination against Roma. The ‘4R’ framework is to be used as the methodological tool for proving this hypothesis. The Opponent was looking for an empirical or hypothetical case of such an education law which might prove the hypothesis of the Respondent. If a domestic law would, for example, exclude Roma from a certain vocation, such as a hairdresser or car mechanic, this would certainly constitute discrimination in the enjoyment of the right to work, but not of the right to education. If a law would exclude Roma from access to, vocational education necessary for acquiring the skills of a hairdresser or car mechanic, this would constitute direct discrimination in the enjoyment of the right to vocational education, but it is input-related and has nothing to do with the research question of the Respondent, which is exclusively related to output-related quality criteria. In other words, in order to prove the validity of her hypothesis, she would have to nd formal qualication requirements for a hairdresser, car mechanic or any other vocation in the respective vocational education laws which are more difcult to achieve for Roma than for nonRoma. In the opinion of the Opponent, it is highly improbable, if not impossible, to nd such formal qualication requirements in education laws of any European State. On page 11, the Respondent promised that it ‘will be illustrated by means of examples how legislation that is seemingly neutral may well be systematically counterproductive for Roma in diverse legal categories’, but the Opponent has not found in the dissertation one example directly related to her hypothesis. Coming back to her research question as dened on page 32: Even if she could nd an example of domestic education law constituting systemic discrimination against Roma in access to vocational qualications, how could international human rights law

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possibly provide any ‘support for her arguments’? From a methodological point of view, this is not a sound question. International human rights law is a legally binding normative framework which sets certain minimum standards relating to the right to education, non-discrimination etc. which States parties to the respective treaties must respect, protect and full. If States do not comply with the respective obligations deriving from these minimum standards, they violate international law. Whether or not States violate their international human rights obligations in a particular case usually raises difcult questions of interpretation. It is certainly possible that Finnish, Swedish, German, Austrian, Czech or Slovak education laws and/or practice constitute discrimination against Roma in the enjoyment of their right to education. But this does not mean that international human rights law provides support for any particular arguments or for the general hypothesis of the Respondent. This research question rather indicates that the Respondent is less interested in interpreting the relevant provisions of international law than in ‘using’ international law for certain advocatory purposes. In fact, throughout the dissertation, she develops certain ideas and then ‘uses’ international human rights law in order to nd aspects which might support her ideas. For example, in the context of the recognition of rights-holders she states at page 119: ‘International human rights law can be used to back up any of these pretensions.’ In the opinion of the Opponent, this is not a proper methodology for an academic research as it necessarily contains the danger that the law is not interpreted at its own value but only ‘used’ for advocatory purposes. If the analysis of the law would lead to a different (non-supportive) result, it would simply not be ‘used’. This advocatory approach is also afrmed in chapter 4.2. relating to methodology. On page 73, the Respondent states: ‘A tactic for the purposes of the study is to use the statutory interpretation, but in a kind of extended way. Insofar as the distinctiveness of positivism is that it insists upon separating law from morality, the present study is not positivist, as international human rights law in many cases contains both legal and moral norms at once.’ This is a remarkable methodological statement. Apart from the strange assumption that only international human rights law (and not other international or domestic law) would codify moral values, it seems to misunderstand legal positivism and reveals a lack of methodological understanding of academic research. It is true that legal positivism strongly separates law from morality and excludes all non-legal considerations from the ‘purely’ legal interpretation of the law. But one does not have to be a legal positivist (and the Opponent certainly does not belong to this methodological school of thought) to accept the basic rule of academic legal research that legal arguments should be separated from non-legal (religious, ideological, moral, political etc.) arguments. The Vienna Convention on the Law of Treaties codies certain generally accepted methods of how international treaty law should be interpreted. It is not entirely clear to the Opponent what the ‘kind of extended way’ in which the Respondent wishes to ‘use the statutory interpretation’ as a ‘tactic’ should consist of, but the general approach of the dissertation illustrates that her aim is not primarily to nd out the proper meaning of relevant international human rights treaty law but to ‘use’ international law in order to support certain pre-conceived views and arguments.

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In other words, throughout the dissertation she mixes up her own personal views with the alleged meaning of international law. In the opinion of the Opponent, this constitutes a serious weakness of the entire study. The second serious weakness is that she develops a comprehensive analytical framework for the purpose of proving her hypothesis, but she fails to apply this theoretical framework to the practical domestic education laws in at least a few selected European countries. On page 11, she denes one of her research questions as follows: ‘When are State parties to international human rights law to be criticized for not having a sufciently sound legal framework to guarantee the implementation of the basics of good quality education?’ The Opponent expected to nd answers to this question in the concluding Part III of her thesis (‘Contextualising the Frame’) on the basis of a proper analysis of relevant domestic education laws (and hopefully also practice) in at least a few selected countries, such as Finland, Sweden, Germany and Austria, i.e. the countries where she had carried out her research. To his regret, he learned that also this part remained purely theoretical and lacked any proper application of her theory to the legislative or administrative practice of European States. Even chapter 10.3., entitled ‘Back to Roma and Qualications’, raised further questions instead of providing an answer to her main research questions outlined at the beginning of the dissertation. It is only in the nal chapter 10.4., entitled ‘From Treating the Symptoms to Challenging the Underlying Disease’, that we get a fairly surprising and short explanation for her lack of answering her own research questions (page 315): ‘As a matter of course, any country study that aims at more than a supercial description demands contextualisation to particular circumstances. Therefore, this study refrains from giving examples that might trivialise the issue or mislead the reader into awed conclusions about the law of education in single countries. To be more precise, this study suggests that it is only after a diagnosis of systemic discrimination that decisions about the cure should be made.’ The Opponent agrees with the Respondent that proposals for cure can only be made after a diagnosis of systemic discrimination. He can also accept that recommendations for cure as a legal policy are not necessarily part of this dissertation. But the diagnosis, i.e. the answer as to which European countries (at least a few examples) in their domestic legislation relating to vocational education reveal a systemic discrimination against Roma, would have been at the core of the dissertation. In the opinion of the Opponent, one simply cannot start a dissertation with a hypothesis, develop an analytical framework as a method of proving or disproving the hypothesis, and nally evading to apply this analytical framework to reality. In the logic of academic research, one essential part of the dissertation is simply missing. The Respondent is not answering her main research questions, and the reader does not know whether the hypothesis is right or wrong, whether it has been developed into a proven thesis or not. Moreover, by failing to apply the analytical framework to her own research questions, the Respondent does not provide the reader with a possibility to assess whether or not this methodological tool is a valid one or not. Although the Respondent in chapter 10 provides some ‘Concluding Remarks on Justication of the 4R Scheme’, without having applied this analytical framework to concrete education laws, these remarks are based again on assumptions

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rather than on scientic proof. The simple explanation, respectively assertion, of the Respondent that to apply her theoretical framework to specic country situations ‘might trivialise the issue or mislead the reader into awed conclusions about the law of education in single countries’ indicates to the Opponent that she seems herself not to be fully convinced about the appropriateness of her hypothesis and/or the validity of her own theoretical framework. Since the Respondent has failed to apply here analytical framework to prove her hypothesis, it is difcult for the Opponent to assess the validity of her theory in abstracto. In itself, the ‘4R Scheme’ does not seem unreasonable and contains a number of interesting ideas. She seems to be attracted by the number 4, but she does not sufciently explain her assumptions for the 4 Rs (rights, recognition, resources and representation), the 4 skills (basic, language, vocational and cultural skills), the 4 recognition distinction criteria (age, language, gender and ethnicity) or the 4 participatory rights relating to representation (voting, freedom of assembly and association, minority and indigenous peoples’ rights and workers’ rights: see page 219, note 613). One could easily think of other Rs (such as remedies), skills (such as economic skills), distinction criteria (such as religion) or participatory rights (such as participation in plebiscites or in cultural affairs) which might seem equally relevant for analysing the right to vocational education as applied to the Roma. But only the application in practice might give a conclusive answer whether the assumptions on which this analytical framework is based are valid or not. On page 66, the Respondent explains that the ‘4R Scheme’ is an ‘attempt to unwrap the circumstances that may create and maintain systemic discrimination as dened for the purposes of the present study. In general terms, four interconnected aspects are suggested, disregard of which cumulatively create and maintain exclusion of individuals of disadvantaged groups from educational qualications with proper functional value for them and their communities.’ The Opponent fails to understand why only the cumulative disregard of all four components of the ‘4R Scheme’ amounts to systemic discrimination but the Respondent insisted also in the oral defence that this was a cornerstone of her theory. If a domestic law in a given State, for instance, explicitly excludes Roma from a particular vocational qualication, this would certainly prove that their rights to education and non-discrimination are violated. According to the Respondent’s theory, one would nevertheless have to nd disregard for recognition, resources and representation to prove systemic discrimination. If public Roma schools receive signicantly less human and nancial resources on discriminatory grounds than other comparable minority schools, this amounts to systemic discrimination without the need to nd disregard of rights, recognition and representation. From this perspective, the requirement of cumulative disregard in the analytical framework, in the opinion of the Opponent, constitutes an unnecessarily high threshold for nding systemic discrimination as compared to the usual human rights assessment methods of international monitoring bodies. In the context of the chapter on resources (pages 171 et seq.), the Respondent deals with the important question of State responsibilities in relation to the right to

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education. Many of the issues discussed in this respect seem, however, a little outdated and do not reect contemporary human rights theory. Already in the title of sub-chapter 7.1.1., the Respondent speaks about ‘Programmatic Rights’, which is a term that was used in the heated debates of the Cold War by conservative scholars and politicians to underline that economic, social and cultural rights, in their opinion, were not ‘real’ binding legal rights with corresponding State obligations. After the end of the Cold War and the recognition of the equality, interdependence and indivisibility of all human rights during the Vienna World Conference of Human Rights in 1993, the theory of State obligations to respect, protect and full human rights has been widely accepted for all human rights both in theory and practice. The Opponent, of course, recognizes that there are still scholars who put in question the equality and justiciability of the so-called ‘2nd generation of human rights’, but if the Respondent would adhere to this theory, a more extensive discussion would have been required with taking all the necessary consequences into account which would derive from such a narrow concept for the other chapters of the dissertation. The Opponent is more under the impression that the Respondent, although using the concept of obligations to respect, protect and full, is not fully aware of the meaning of these State obligations in relation to civil, political, economic, social and cultural rights, the concept of immediate applicability and the duty of progressive implementation, the question of justiciability, obligations of conduct and result etc. Just to quote a few examples: On page 171, she states that the duty to respect requires certain legislative and administrative measures which, in the opinion of the Opponent, would be more of the nature of the duty to full. On page 247, she calls the nature of the rights recognized in Articles 7 and 8 of the Convention on the Elimination of all Forms of Discrimination against Women, which include the right of women to vote on equal terms with men, as ‘programmatic’, i.e. subject to progressive implementation. On page 296, she speaks about an alleged ‘distinction between subjective and progressive rights’ in relation to the right to education. On page 174, she asserts that the output-focus in education would correspond to obligations of result and the input-focus (equal access, contents etc.) to obligations of conduct. On page 175, she uses the expression of ‘immediate state obligations’ in relation to basic education above primary school age and, as often in the course of her dissertation, refers to the outdated holdings of the European Court of Human Rights in the Belgian Linguistics case of 1968 as support to her ndings. But on page 178, she concludes that ‘it would be too far-reaching to argue that international law considers adult basic education subject to immediate and direct implementation in the vein of primary education’. These and many other examples show that the Respondent seems to have a fairly limited understanding of contemporary human rights theory and jurisprudence relating to State obligations to respect, protect and full human rights. Throughout the book, the Respondent refers to a considerable number of European and international human rights treaties with the purpose of nding support for her arguments which she developed outside of human rights law. She also refers to jurisprudence of the European Court of Human Rights and other treaty monitoring bodies, but often she uses case law interpreting a particular provision of international

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law as an argument relating to a different treaty. For example, on page 189 she refers to the European Court of Human Rights and the Belgian Linguistics case as an authority for interpreting totally different provisions in the UNESCO Convention against Discrimination in Education. On pages 201 et seq. she discusses the question of non-discriminatory funding for education providers, by starting with the Belgian Linguistics case and then asserting that a ‘shift of interpretative paradigm started to pave its way rst elsewhere, namely within the UN regime’ (page 202). In the opinion of the Opponent, this difference of jurisprudence does not constitute a paradigm shift but can easily be explained by the different wording of different treaties which she seems to mix up. In chapter 2.2., the Respondent discusses how to conceptualise Roma. She raises the question whether Roma can be considered as a people, nation, or a national, ethnic, linguistic, distinct or pan-European minority by applying relevant international human rights treaties. Without arriving at a clear own opinion she concludes at page 30 that this ‘heterogeneous assemblage of people indeed constitutes an ideal prime group for a researcher that seeks to explore the boundaries between human rights and minority rights and potential tensions between them’. On page 32 she also makes a clear distinction between human rights law and minority law as if these would be two different bodies of international law. In fact, treaties and provisions on the human rights of members of minorities are as much part of international human rights law as special treaties on the human rights of children, women, migrants, refugees, persons with disabilities and other special groups. But leaving this aside, the Opponent could not nd out where the Respondent has actually explored the boundaries between human rights and minority rights in her dissertation. Most of her thesis deals with her analytical ‘4R’ framework in relation to systemic discrimination in the enjoyment of the right to education, and the minority and Roma aspect mentioned in the title seem to have been somehow neglected and side-lined. It is only in Part III that she comes back to the Roma question. For the Opponent it was a little surprising that the Respondent on page 271 concludes: ‘With all respect to minority rights, the talk about “the Roma” as a specic minority may be problematic from the universal human rights viewpoint.’ In fact, she seems to leave open whether provisions of international human rights law providing special protection to members of minorities are in her opinion to be applied to Roma or not. Finally, the Opponent wishes to come back to the focus of the dissertation on the ‘output-side of the process, i.e. on credentials or formal qualications as a means of quality assurance’, as outlined on page 12. The essential argument the Respondent proposes on page 16 is ‘that every body should have a right to education that progresses resolutely towards clearly stated and generally recognised aims.’ But she fails to explain who is to dene these generally recognised aims. Is this a competence of domestic jurisdiction or are these aims at least to some extent dened in the framework of the human right to education as dened in international law? If the dissertation would have been rooted in international law rather than simply having ‘used’ international law as support to her own theories and arguments, the Respondent would have found out that

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the respective treaties actually do contain clearly stated aims. It is only on page 174 that she refers to the objectives of education as dened in Article 13(1) of the International Covenant on Economic, Social and Cultural Rights, but she does not enter into any substantive discussion of these aims and simply calls this a ‘fairly abstract provision’. It is true that notions such as the ‘full development of the human personality and the sense of its dignity’, that ‘education shall enable all persons to participate actively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious- groups’ are not very clearly dened and, therefore, subject to interpretation, but it is nevertheless surprising that the Respondent, in a dissertation with a focus on the quality of education and on discrimination against Roma, does not see a need to further look into the precise meaning of educational aims, such as enabling members of the Roma to participate actively in a free society or to promote tolerance among all ethnic groups. Moreover, the aims of education in Article 13(1) of the Covenant have been further developed in Article 29(1) of the Convention on the Rights of the Child, an important provision which the Respondent could, and in the opinion of the Opponent, should have been taken into account in her efforts to dene a concept of ‘an identiable quantum of quality education’ as a measure of the extent to which everybody’s right to education should be honoured (page 17). In conclusion, the Opponent wishes to repeat that the dissertation suffers from a number of serious methodological and substantive weaknesses. In particular, the respondent starts from a hypothesis, develops a theoretical framework for the purpose of proving or disproving the validity of her hypothesis, but fails to apply this analytical framework to any empirical facts, i.e. at least to the domestic laws of vocational education in a few selected European countries. As a consequence of this serious shortcoming, the reader is left in the dark whether the hypothesis of the thesis is true, i.e. whether there are any European States where vocational education legislation amounts to a systemic (direct or indirect) discrimination against Roma. Moreover, the reader is also not in a position to assess whether the theoretical framework of the Respondent actually provides a valid methodological tool for the purposes it has been developed. The only way for the reader and the Opponent to evaluate this analytical framework is to assess the theoretical soundness of the assumptions on which it is based. However, these assumptions and possible alternatives are only rarely explained in sufciently clear and convincing terms. For these reasons, the Opponent cannot but conclude that the dissertation is weak. On the other hand, the Respondent has selected an approach to the human right to education which has not been elaborated much before, both in academic literature and in jurisprudence. She has deliberately chosen a hypothesis which is difcult to prove, and she has provided a wealth of thoughtful information on this very aspect of vocational quality education. Moreover, her analytical framework is original and, although a nal assessment on its theoretical and practical validity seems impossible, is based on a number of interesting and useful assumptions which she has drawn from her extensive practical experience in the eld of Roma education. An advocatory approach is not per se unacceptable, and the Respondent was clearly guided by the noble goal of

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assisting the Roma community in lifting themselves out of poverty as a disadvantaged group by revealing the discriminatory nature of education legislation and developing respective policies of eliminating systemic discrimination in this eld. During the oral defence of the dissertation; the Respondent has faithfully and with knowledge and understanding replied to all the critical questions raised by the Opponent and claried some of the controversial issues. Manfred Nowak Professor of International Human Rights Law, University of Vienna

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(e) Generally, abbreviations should be followed by a full stop (Doc., No., para., ed.) unless the abbreviation includes the last letter of the word (paras, eds). Where a shortened form is an acronym in capital letters, no full stops are required (UN, WHO, EEC, ECHR). Acronyms should be introduced when rst appearing (e.g., ‘Global Environment Facility (GEF)’ or ‘Community Charter of the Fundamental Social Rights of Workers (hereinafter the ‘Social Charter’)’). While the titles of periodicals should not be abbreviated but given in full, the titles of certain law reports and ofcial journals may be abbreviated (ECR, CMLR, ECHR, OJ). (f) Figures and numerals are to be spelled out from one to ten (except in page and other similar references); use numerals for 11 and greater numbers. Also use numerals throughout for dates, times and ages of people. Spell out all gures beginning a sentence. Spell out fractions, e.g. ‘two-thirds’, ‘three-quarters’. General Layout and Pagination (a) All copies should be typed in the style of the Yearbook on one side of the paper only (preferably A4). (b) Please double-space all copy, including footnotes. (c) You should leave generous margins at top, bottom, left and right: a margin of at least 2,5 cm on the left hand side. Remember that the editors will need to make marks in these margins. (d) The rst page should contain the full title of the article; author’s full name; afliation; address; telephone and fax numbers; and e-mail address. Notes and Reference Systems (a) Please keep notes brief, giving source references with as little additional matter as possible. Discursive notes should be avoided by incorporating the material into the main text where possible, or omitting it altogether. (b) Be clear and consistent from note to note. Make sure that every reference corresponds with the details such as the form and spelling of the author’s name; the date of publication; the wording, spelling, punctuation and capitalization of the title; etc. You are responsible for the accuracy of all citations. (c) For cross-references in the notes, we use ‘supra’ and ‘infra’. Op. cit., loc. cit. and idem should not be used as forms of reference. Ibid. may be used if desired: it must always refer to the immediately preceding reference only. e.g. See supra text accompanying notes 3-5. e.g. See infra notes 100-102 and accompanying text. e.g.: Cf. Locke, Two Treatises, supra note 8, at 35

(d) Footnote indicators should follow all punctuation. e.g.: The Court rst formulated the notion in the Barcelona Traction case of 1970.1

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The Reference System Please use the following system as a model for laying out references. A source should be given a full reference the rst time a work is mentioned. The full note reference should include the following information: Full References to Books – author’s/editor’s rst name(s) or initials – author’s surname – complete title (including subtitle, if any, which is to be separated from the main title by a colon) – editor, compiler or translator, if any – series title, if any – edition, if not the original – number of volumes, if applicable – publisher’s name – place of publication (but not essential if place of publication is also part of publisher’s name) – date of publication – volume number (preferably in roman numbers) – page number(s) (without p. or pp.) e.g. Ian MacLeod, I.D. Hendry and Stephen Hyett, The External Relations of the European Communities: a manual of law and practice (Clarendon Press: Oxford, 1996) at 231. e.g. Jean Combacau, Le pouvoir de sanction de l’ONU: étude théorique de la coercition non militaire (Pedone: Paris, 1974) at 9. e.g. Karl Zemanek, ‘What is “State Practice” and Who Makes It?’ in Ulrich Beyerlin, Michael Bothe, Rainer Hofmann and Ernst-Ulrich Petersmann (eds.), Recht zwischen Umbruch und Bewahrung – Festschrift für Rudolf Bernhardt (2nd edn, 3 vols, Springer: Berlin, 1995), vol. II, 289–306 at 294. e.g. Gregory H. Fox and Brad Roth (eds.), Democratic Governance and International Law (Cambridge University Press, 1996) at 96. e.g. Carl Schmitt, The Concept of the Political (rst published 1932) (translated and with an introduction by George Schwab, University of Chicago Press, 1996) at 79. e.g. John Locke, Two Treatises of Government (rst published 1690) (Peter Laslett ed., 2nd edn, Cambridge University Press, 1967) at 137-39. e.g. D. Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press: Durham and London, 1998) at 6.

Full References to Journal Articles – author’s rst name(s) or initials – author’s surname – title of the article (with inverted commas)

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volume number (in arabic numerals) title of the journal date of volume page number(s), if available (without p. or pp.) Note also: (1) the title of the journal should be given in full and be italicized; (2) French and Italian article titles and journal titles often have the rst word beginning upper case, but thereafter lower case (see the second example below).

e.g. Hilary Charlesworth, ‘Feminist Methods in International Law’, 93 American Journal of International Law (1999) 379-94. e.g. Olivier Corten and François Duboisson, ‘L’hypothèse d’une règle émergente fondant une intervention militaire sur une “autorisation implicite” du Conseil de sécurité’, 104 Revue générale de droit international public (2000) 873-910 at 888. e.g. Jan Klabbers, ‘Cat on a Hot Tin Roof: The World Court, State Succession, and the GabikovoNagymaros Case’, 11 Leiden Journal of International Law (1998) 345-55 at 348. e.g. Gerry Simpson, ‘On the Magic Mountain: Teaching Public International Law’, 10 European Journal of International Law (1999) 70. e.g. D. Z. Cass, ‘Navigating the Mainstream: Recent Critical Scholarship in International Law’, 65 Nordic Journal of International Law (1996) 337 at 380.

Newspapers, Bulletins, Newsletters, etc. Articles from newspapers, bulletins, newsletters etc. should be in the form: e.g. John Dainton, ‘The World: Intervening with Elan and No Regrets’, New York Times, 26 June 1994, at D3. Full References to Unpublished Material (including unpublished theses or dissertations)

– – – – – – –

author’s rst name(s) or initials author’s surname title of document (with inverted commas) volume or batch number, where applicable name of collection, if known folio number, or call number, if known depositary and where located (or academic institution with date for PhD theses and dissertations) e.g. S. Marks, ‘The Riddle of All Constitutions: A Study of Democratic Ideas in International Law’, PhD thesis, University of Cambridge (1996) at 117.

Website/Internet References The Website/Internet reference should give the full title of the material referred to, following book/journal/document citation style (see above). The website address is to be surrounded by chevrons and the URL address omitting ‘http://’. The date of

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the material referred to on the website should also be given. For example: Maria Urruzola, ‘In the name of Human Rights Big Brother’s name was NATO’, <www.lolapress.org/artenglish/urrue11.html> (accessed 10 May 2001).

Short Titles Subsequent citations in the notes to a source already given in full should take a shortened form. A shortened reference includes only the last name of the author and the short title of the book (containing the key word or words from the main title, so as to make the reference easily recognizable and not to be confused with any other work), followed by a cross-reference supra or infra to the location of the full reference and the page number of the reference. Shortened References to Books – author’s surname – short title of the book – volume number, if applicable – page number(s) (without p. or pp.) Short titles for the examples given above would be: e.g. MacLeod, Hendry and Hyett, External Relations, supra note 6. e.g. Combacau, Le pouvoir de sanction, infra note 100, at 900. e.g. Zemanek, ‘State Practice’, supra note 3, at 297. e.g. Fox and Roth, Democratic Governance, infra note 60, at 18–23. e.g. Schmitt, Political Theology, supra note 41. e.g. Locke, Two Treatises, supra note 20, at 36. e.g. Dyzenhaus, Law as Politics, supra note 12, at 56.

Shortened References to Journal Articles – author’s surname – short title of the article – page number(s) (without p. or pp.) e.g. Charlesworth, ‘Feminist Methods’, supra note 7, at 380. e.g. Corten and Duboisson, ‘L’hypothèse’, supra note 6. e.g. Klabbers, ‘Hot Tin Roof ’, infra note 126, at 350. e.g. Simpson, ‘Magic Mountain’, supra note 60, at 76. e.g. Cass, ‘Navigating the Mainstream’, supra note 1, at 79.

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Finnish Yearbook of International Law (Vol. XVI, 2005) Shortened References to Unpublished Material (including unpublished theses or dissertations) – author’s surname – short title – page number(s) e.g. Marks, ‘The Riddle’, infra note 99, at 72.

Headings We do not normally expect more than three levels of heading within an article. Headings should not be numbered, and will instead be distinguished typographically by typeface size and the use of bold, italics, etc. In headings we prefer the use of initial capitals for all words except prepositions and articles, and all words that contain ve letters or more. Quotations (a) As a guideline, quotations of more than about fty words should be set off (i.e. indented, no inverted commas, with an extra space above and below) from the main text; those of fewer than fty words should run on in the text inside inverted commas. For quotes within the displayed quote, use double quote marks. (b) Quotations should be kept to a minimum, except where length is indispensable for a close analysis. (c) Omission points should be styled as three spaced points (i.e. three periods separated by spaces and set off by a space before the rst and after the last period). Omission points should not be included at the beginning or end of quotations. When used within quotations, omit all punctuation (including full points) immediately prior to the omission points. (d) When a letter must be changed from upper to lower case, or vice versa, enclose it in brackets. Substituted words or letters and other inserted material should also be bracketed. Example: ‘[T]he Court cannot remedy a deciency if, in order to do so, it has to exceed the bounds of [normal judicial activity].’

(e) Quotations must be verbatim from the original source, even if the original contains an error; this can be identied by the use of ‘[sic]’. Authors are responsible for the accuracy of all quotations and are requested to check them with particular care. (f) Authors are responsible for obtaining permission where needed to cite another author’s material. (g) Emphasis by the author (in italics) in a quoted passage should be explained in the footnote: ‘(emphasis added)’. Emphasizing by the use of bold is to be avoided. An exception, however, applies to quoted passages where the original already contains certain emphasized passages in italics and the author wishes to add (other) emphasis. The corresponding footnote should then contain the following explanation: ‘(italic emphasis in the original, bold emphasis added)’.

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Where the author wishes to omit an emphasis in a quoted passage, this should be explained in the appropriate footnote: ‘(emphasis omitted)’. (h) When quotation in foreign languages is essential, it is preferable in most cases to quote in the original and follow this directly with an English translation in brackets. If in doubt, consult the Yearbook editors. Remember to specify whether the material was translated by you or someone else. Citation of International Treaties Whenever a treaty is referred to, the rst citation ought to give (as a footnote) its full title, its place of signature, its date of signature, the date (where applicable) it came into force, and a citation for where the material can be consulted (e.g., International Legal Materials, United Nations Treaty Series, European Treaty Series, etc.). Example Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, in force 27 January 1980, 1155 United Nations Treaty Series 331; (1969) 8 International Legal Materials 679.

Subsequently, this can be referred to simply as: Article 2 of the Vienna Convention Use the full word ‘Article’ in the text, but you can abbreviate it to ‘Art.’ (plural ‘Arts’) in the footnotes. An ‘Article’ of an international treaty will conventionally have a capital ‘A’. Where Articles are divided into numbered paragraphs, we prefer to cite these as, for example: Article 25(3); and Article VI(5) rather than as: Article 25, para. 3; or Article VI, para. 5 Where Articles are divided into unnumbered paragraphs, these will need to be cited as, for example: Article 8, second paragraph (Note that it is ‘second paragraph’ rather than ‘paragraph 2’.) Use the full word ‘paragraph’ in the text, but you can abbreviate it to ‘para.’ (plural ‘paras’) in the footnotes. Citation of EC Documents and Texts Court of Justice European Community cases are numbered as they are registered at one of the two Community courts – the European Court of Justice (ECJ) and the Court of First Instance (CFI, established in 1989). Since that date, ECJ cases are prexed by ‘C-’ and CFI cases are prexed by ‘T-’. Before the establishment of the CFI, ECJ numbers had no prex. Cite a case before the ECJ or the CFI to the European Court Reports (ECR); it is advisable to cite also to Common Market Law Reports (CMLR), if CMLR has reported the case. Where a particular year of the ECR report is divided into more than one volume, the volume number is given in upper case roman before the page number, e.g. [1988]

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Finnish Yearbook of International Law (Vol. XVI, 2005) ECR II-1234. (See the last two examples below.) Volume I contains ECJ cases and volume II contains CFI cases. Where a particular year of the CMLR report is divided into more than one volume, the volume number is given as an arabic number before the ‘CMLR’, e.g. [1988] 2 CMLR 1234. Examples Case 6/64, Flaminio Costa v. ENEL [1964] ECR 585 Case 314/85, Firma Foto Frost v. Hauptzollamt Lubeck-Ost [1987] ECR 4199 Case 257/87, Commission of the European Communities v. Council of the European Communities [1989] ECR 259 Joined Cases 142/80 and 143/80, Amministrazione Delle Finanze Dellostato v. Essevi [1981] ECR 1413 at 1431 Case C-159/90, Society for the Protection of Unborn Children Ireland Ltd v. Stephen Grogan [1991] ECR I-4685 Case T-194/94, Carvel and Guardian Newspaper v. Council [1995] ECR II-2765, [1995] 3 CMLR 359.

Council, Commission and European Parliament Documents Ofcial Journal references should be (in an English-language manuscript) to the English-language version of the Ofcial Journal (OJ) and should always be given whenever EC material (Directives, Regulations, Commission Decisions and Commission Notices) is rst referred to (subsequent references within the same chapter to the same material need not be referenced again). Ofcial Journal references can be in the form of either: OJ 1985 No. L372, 31 December 1985, at 5 or: OJ 1985 No. L372/5

Whichever style is used, it should be used consistently. Examples Article 8(2) of the Merger Control Regulation, Council Regulation 4064/89, OJ 1989 No. L395, at 21 Council Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products, OJ 1989 No. L359, 8 December 1989. Council Directive 87/102/EEC of 22 December 1986 on consumer credit, OJ 1987 No. L42, 12 February 1987

Note that the substantive description of the Directive (e.g., ‘on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products’) is in lower case.

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Citation of ECHR Documents and Texts European Court of Human Rights Cite a case before the European Court to European Court of Human Rights, Reports of Judgments and Decisions (ECHR). For older decisions, the cases may also be cited to European Court of Human Rights, Series A or B (e.g., ECHR Series B). You may also cite a case to the European Human Rights Reports (EHRR). As some earlier volumes of ECHR contain only one case, citation to a beginning page is unnecessary, and all pertinent page numbers may be indicated directly ‘at’. Cite cases by case name, volume number, reporter, page number where applicable and year. Kampanis v. Greece, ECHR (1995), No. 318, 29, at 35. Handyside v. United Kingdom, ECHR Series A (1976), No. 24, at 21-23. Tyrer v. United Kingdom, ECHR Series A (1976), No. 26; 2 EHRR 1.

In cases where the applicant’s name is not disclosed it is indispensable that the application number or at least the year be quoted in all references. X and Y v. The Netherlands (Application 8978/80), 8 EHRR (1985) 235.

If an ofcial report of a recent case before the Court is not available, materials may be cited to the Court’s ofcial website <www.echr.coe.int>. European Commission of Human Rights Before 1999, cases were also heard before the now-defunct European Commission on Human Rights. These cases should be cited to Decisions and Reports of the European Commission of Human Rights (Decisions & Reports) or to the Yearbook of the European Convention on Human Rights or to the European Human Rights Reports (EHRR): Kröcher and Möller v. Switzerland (Application No. 8463/78), 26 Decisions & Reports (1982) 24. Iversen v. Norway, 7 Yearbook of the European Convention on Human Rights (1963) 278, at 280.

Citation of United Nations and League of Nations Documents and Texts Resolutions General Assembly GA Res. 832 (IX), 18 December 1954 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the UN, GA Res. 2625 (XXV), 24 October 1970.

From the 31st session the session number is cited in arabic numerals: GA Res. 41/133, 4 December 1986

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Finnish Yearbook of International Law (Vol. XVI, 2005) Security Council SC Res. 181, 7 August 1963

Or SC Res. 181 (1963)

ECOSOC First and second session: ECOSOC Res. 1/8, 15 February 1946 ECOSOC Res. 2/24

Afterwards until 1978 (63rd session): ECOSOC Res. 801 (XXX), 21 December 1966

From 1978: ECOSOC Res. 3, 4 May 1981 Or, if no date is indicated, ECOSOC Res. 1981/3

Documents UN documents (including documents of all the UN subsidiary bodies) should be given their full UN Doc. reference number on rst citation. Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/45/870 (1990), Annex, at 10. Renewing the United Nations: A Programme for Reform, Report of the Secretary-General, UN Doc. A/51/950 (14 July 1997), paras 170 and 172. Report of the International Law Commission on the Work of Its Fifty-second Session, UN GAOR, 55th Sess., Supp. No. 10, ch. IV, UN Doc. A/55/10 (2000). Alain Pellet, First Report on the Law and Practice Relating to Reservations to Treaties, UN Doc., A/CN.4/470 (30 May 1995), para. 109. Mpandanjila v. Zaire (No. 138/83), Selected Decisions of the Human Rights Committee under the Optional Protocol, UN Doc. CCPR/C/OP/2 (1983) Vol. II, at 164.

Cases Cite a case before the International Court of Justice (ICJ) or the Permanent Court of International Justice (PCIJ) or the Permanent Court of Arbitration by the case name; the names of the parties; the name and the year of the publication in which the decision is found; the page on which the case begins and the page you are referring to. Give the case name as found on the rst pages of the report. If an ofcial report of a recent case before the ICJ is not available, materials may be cited to the Court’s ofcial website <www.icj-cij.org>. Examples: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports (1971) 16, (dissenting opinion of Judge Fitzmaurice) 220, at 294. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Provisional Measures), ICJ Reports (1984) 169, at 433-34, para. 93.

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Gabikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports (1997) 7, (separate opinion of Vice-President Weeramantry) 88, at 102. Nationality Decrees in Tunis and Morocco, Advisory Opinion, PCIJ Series B, No. 4 (1923) 8. The Case of the SS Lotus (France/Turkey), PCIJ Series A, No. 10 (1927) 4, at 23. Rights of Minorities in Upper Silesia (Minority Schools) (Germany v. Poland), PCIJ Series A, No. 15 (1928) 54, (dissenting opinion of Judge Huber) 48, at 53. Case Concerning the Air Service Agreement of 27 March 1946 between the United States of America and France (France/United States), 18 Reports of International Arbitral Awards (1978) 417, at 428.

The cases before the International Criminal Tribunal for the former Yugoslavia (ICTY) are to be cited as follows: Prosecutor v. Duško Tadi, Case No. IT-94-I-A, ICTY Appeals Chamber, Judgment (15 July 1999) para. 84. Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, ICTY Appeals Chamber, Judgment (5 July 2001) (separate opinion of Judge Nieto-Navia) para 5. Prosecutor v. Slavko Dokmanovic et al., Case No. IT-95-13a-PT, ICTY Trial Chamber, Decision on the Motion for Release by the Accused Slavko Dokmanovic (22 October 1997) para 34.

Domestic Case Law For domestic case law, use a style of citation of cases that is common in the particular country and be consistent in using that style. If the case has been reported in International Law Reports, the reference should be added: the readers are more likely to have access to these than national reports. For further guidance, please contact the Yearbook. On the Editing Process Once you have submitted your manuscript as described above, and once it has been approved by the Yearbook and any referee the Yearbook may want to consult, editing can begin. A group of editors will be assigned to your article. They will work through the manuscript, reading it for sense and consistency in presentation and argument as well as checking that such things as notes are all complete and clearly presented. If material is found still to be missing or the manuscript falls short of the standards outlined in these notes, we may have to return the manuscript to you for amendment. We reserve the right to make alterations and corrections to conform with both the general style of the Yearbook and accepted rules of grammar and syntax. Nothing of substance will be changed on your manuscript without your knowledge. Eventually, you will receive proofs for correction. You will kindly be asked to keep corrections to a minimum. The only corrections that should normally be necessary at this point are those relating to type-set errors or those which take account of important material or references not previously available, or subsequent development of notes. Substantial modications to the text or footnotes can be made only in consultation with and with the consent of the editors. In the end, you will be provided with one free copy of the Finnish Yearbook of International Law containing your contribution, together with 25 offprints.

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Any queries regarding submission, house style and formatting should be directed to the Executive Editor of the Yearbook, fybil-editors@helsinki.. The editors of the Finnish Yearbook of International Law look forward to hearing from you!

Ius Gentium Association Ius Gentium International Law Association (est. 1983) provides a lively, active and easily accessible forum for all interested in international law and related issues. Ius Gentium organizes events and encourages its members to take part in international legal discussion and activities, in studying, teaching and researching international law. The Association is an active publisher, the main publication being the Finnish Yearbook of International Law by Brill/Martinus Nijhoff Publishers. The Association conducts seminars and discussion groups concentrating on questions of recent interest in international law and related elds. Through its members and activities, Ius Gentium converses with several international legal scholars, research institutes and legal bodies. The members represent a great variety of professions; among them there are diplomats, university professors, lawyers, researchers and students. The members share an interest in global matters in general and in international law in particular. The majority of the members are Finnish citizens. Although most of the members have a legal background, other academic elds, in particular political and social sciences are also represented. Should you have any questions concerning the Ius Gentium Association, please contact the Secretary of the Association via the Erik Castrén Institute of International Law and Human Rights, P.O. Box 4 (Yliopistonkatu 3), FIN-00014 University of Helsinki, Finland.