International Justice Against Impunity: Progress And New Challenges

International Justice against Impunity Progress and New Challenges International Justice against Impunity Progress an...

Author: Yves Beigbeder

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International Justice against Impunity Progress and New Challenges

International Justice against Impunity Progress and New Challenges Yves Beigbeder

MARTINUS NIJHOFF PUBLISHERS BOSTON • LEIDEN

A C.I.P. Catalogue record for this book is available from the Library of Congress. Printed on acid-free paper. ISBN 90 04 445 x

© 2005 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoﬀ Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microﬁlming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 90, Danvers MA 0923, USA. Fees are subject to change. Printed and bound in The Netherlands.

Table of Contents

FOREWORD INTRODUCTION

1

ix  The Nuremberg and Tokyo Tribunals 3 The Human Rights Regime 5 The International Criminal Tribunals for the Former Yugoslavia and Rwanda 5 Mixed National/International Tribunals 6 The International Criminal Court 7 Friends and Foes of the Court 7 The International Court of Justice and International Criminal Tribunals 8 Notes 8 LIST OF ABBREVIATIONS 0 LIST OF PRESENTATIONS  THE WEAKNESSES OF NATIONAL JUSTICE 3 Selected Countries and Responsible Leaders 5 North Korea: Kim Jong Il 5 Ethiopia: Mengistu Haile Mariam 6 Uganda: Idi Amin Dada Oumee 6 Indonesia: Generals Suharto and Wiranto 7 Military Regimes in Latin America 8 Chile: Augusto Pinochet 9 Progress in Argentina 20 Progress in Mexico 2 Criminal Justice in Democratic Countries 22 French amnesties and amnesia 22 The US in Vietnam: unwilling military justice 24 Justice denied: the Guantanamo detainees 25 The position of the International Committee of the Red Cross (ICRC) 27 The Third Geneva Convention of 12 August 1949 28 Military commissions 29 Releases from Guantanamo 30 Authorized torture revealed 3 The Supreme Court decisions of 28 June 2004 32 Assessment 35

Table of Contents

vi

A Test Case: the Trial of Saddam Hussein Conclusion Notes 2

UNIVERSAL JURISDICTION

Implementation of the Principle Crimes under International Law Subject to Universal Jurisdiction War crimes Crimes against humanity Genocide Apartheid Torture

Universal Jurisdiction at the National Level Belgium Spain Canada USA France

Universal Jurisdiction: a Flawed Doctrine? Conclusion Notes 3

THE INTERNATIONAL CRIMINAL TRIBUNAL

FOR THE

FORMER YUGOSLAVIA

Common Traits between the Two Generations of Tribunals Differences between the Two Generations of Tribunals The Conﬂict in the Former Yugoslavia Creation of the ICTY The objectives of the Tribunal Mandate and structure Budget and stafﬁng

The Work of the Tribunal

A new strategy Plea-bargaining ‘Big ﬁsh’ before the Tribunal

Sentencing guidelines Cooperation by governments Conclusion Notes 4

THE INTERNATIONAL CRIMINAL TRIBUNAL

The Context Mandate and Structure

Budget and stafﬁng The removal of Carla del Ponte

Rwanda’s Relations with the Tribunal The Tribunal’s Performance A slow process The Tribunal’s strategy Achievements

FOR

RWANDA

36 38 40 45 46 48 48 49 50 52 52 53 53 55 56 57 60 6 62 65 69 69 70 7 72 72 73 75 75 77 78 8 84 85 86 89 93 93 95 96 96 97 99 99 00 03

Table of Contents Enforcement of sentences

National Justice

The gacaca courts

Conclusion Notes 5

MIXED NATIONAL-INTERNATIONAL TRIBUNALS

Sierra Leone’s Special Court

Historical background The creation of an independent Special Court The Statute of the Court The Court’s beginnings The Court’s decisions in 2004 Relationship with the Truth and Reconciliation Commission Assessment

The Delayed Trial of the Khmer Rouge Leaders Historical background The ﬁrst political trials Towards a mixed national-international tribunal The Agreement Recent developments Assessment

East Timor (now Timor Leste): the Serious Crimes Unit Conclusion Notes 6

THE INTERNATIONAL CRIMINAL COURT

The Origins The Rome Statute

Status of the Court Structure of the Court The crimes Prosecution Limitations of the Court’s powers Rights of the accused Rights of victims and witnesses Reparations Penalties Cooperation with states Financing the Court Signatures and ratiﬁcations Amendments and Review of the Statute

The Preparatory Commission for the ICC Building the Court The ﬁrst session of the Assembly of States Parties The second session of the Assembly of States Parties The third session of the Assembly of the States Parties

The First Referrals of Situations

vii

05 05 06 08 0 3 4 4 6 7 20 2 26 27 29 29 30 3 35 38 38 39 4 43 47 5 53 53 54 56 57 58 59 60 6 6 6 6 62 62 62 63 63 7 72 73

Table of Contents

viii

Uganda The Democratic Republic of Congo Central African Republic

Conclusion Notes 7

FRIENDS AND FOES

OF THE INTERNATIONAL

Friends of the Court

CRIMINAL COURT

Friendly states UN organizations and secretariat heads European Union Parliamentarian groups and other regional organizations The International Committee of the Red Cross Other non-governmental organizations

The USA, Russia and China

The American crusade against the Court Bilateral agreements Opposition to the Bilateral Agreements The Security Council resolutions US objections to the ICC – and rebuttal Will Russia ratify the Statute? China’s tacit opposition

Conclusion Notes

8

INTERNATIONAL CRIMINAL TRIBUNALS INTERNATIONAL COURT OF JUSTICE

AND THE

Issues in the Tadic Case Concurrent Procedures before the ICJ and the International Criminal Tribunals The Genocide Convention The interlocutory appeal of Zoran Zigic

Non-conﬂictual Issues and Decisions

Criminal responsibility of senior ofﬁcials The binding force of international tribunals’ judgments

Conclusion Notes 9

CONCLUSION

International Justice The ﬁrst generation of international criminal tribunals: Nuremberg and Tokyo The second generation: Yugoslavia and Rwanda The International Criminal Tribunal for the Former Yugoslavia (ICTY) The International Criminal Tribunal for Rwanda (ICTR) The mixed national-international tribunals The International Criminal Court

Notes INDEX

73 74 75 76 78 8 8 8 83 85 86 88 89 90 9 92 93 95 99 202 204 204 206 2 23 24 25 25 27 27 29 220 22 225 226 227 228 229 230 232 232 235

FOREWORD Fausto Pocar Judge and Vice-President, ICTY.

It is an undeniable fact that within the past decade, the international community has witnessed acceleration in the establishment of judicial bodies at the international level for combating impunity for war crimes, genocide and crimes against humanity. This recent proliferation of criminal courts and tribunals started with the creation, by Security Council resolution, of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) in 993, and the subsequent formation of the International Criminal Tribunal for Rwanda (‘ICTR’) in 994. Drawing from precedent set by the Nuremberg and Tokyo Tribunals, which imposed individual criminal responsibility for the major crimes that shocked the conscience of the international community following World War II, the ICTY and ICTR have served as the basis for several criminal courts that have since been set up under international auspices. In particular, these ad hoc tribunals accelerated the adoption of the Statute of the International Criminal Court (‘ICC’), in 998. Subsequently, quasi-national and international judicial bodies have been created to prosecute crimes committed in speciﬁc geographical regions including the mixed Panels by the United Nations administration in Kosovo (2000), the Special Court for Sierra Leone (2002), the Special Panels for Serious Crimes in East Timor (2002), and the Extraordinary Chambers in the Courts for Cambodia (2003). Most recently, the proliferation of criminal courts and tribunals at the international level has spurred initiatives for prosecuting crimes against humanity and war crimes alleged to have been committed by Sadaam Hussein’s regime in Iraq. In International Justice and Impunity: Progress and Defeats, Yves Beigbeder traces the origins and development of the above tribunals as well as some of the issues and problems that have arisen in the establishment of, what he terms, an international criminal justice regime. This book is his third on the subject, drawing from his observations over the years beginning with his personal experience working on the Nuremberg Trial. Professor Beigbeder begins by noting the failure of national legal systems, such as those in North Korea, Ethiopia, Chile, France and the United States, to prosecute individual political and military leaders for war crimes and crimes against humanity, and how this has been a primary motivating factor for the proliferation noted above. He then assesses the principle of universal jurisdiction, the international crimes that fall under that doctrine and

x

Fausto Pocar

its implementation into national case law. He concludes this section by observing that universal jurisdiction ‘is still more a desirable objective than a reality’ when it comes to the practice of States. Following this recognition of the inconsistent and weak attempts by States individually to prosecute breaches of international humanitarian law, Professor Beigbeder turns to the collective eﬀorts by States to do so. He ﬁrst describes the establishment of the ICTY and ICTR and their role as forerunners to the creation of the ICC and the mixed national-international tribunals. Professor Beigbeder provides a comprehensive overview of the context for the creation of each of these tribunals and the various problems – political, ﬁnancial, and administrative – encountered in their functioning thus far. He concludes with his own assessment as to the eﬀectiveness of each of these tribunals to date and the likelihood of their future success. Finally, Professor Beigbeder explores the relationship of the International Court of Justice vis-à-vis these criminal tribunals, particularly the ICTY and ICTR. He discusses their structural relationship as bodies of the United Nations and some of the legal issues that have been raised before all three tribunals in their respective jurisprudence. Readers will ﬁnd that, on the whole, this book is useful as an informative resource on the issues and problems that have arisen in the attempts by States to enforce international humanitarian and human rights law through the vehicle of courts and tribunals established on the international level. The treatise is broadly aimed at informing the public at large rather than serving as an analytical critique from a legal perspective. To that end, the book summarizes the growing complexity of the international system of criminal jurisdiction. Nevertheless, international lawyers may also ﬁnd this book to be helpful in that the large number of issues covered in the text could serve to trigger new ideas and raise new questions for further research purposes. Professor Beigbeder seeks, through this book, to attain the laudable goal of promoting the progressive development of international criminal justice by providing a balanced, realistic overview of that development, which does not exclude the reality of the political obstacles that have been encountered along the way. He concludes by stating that in spite of these political realities, support for tribunals and courts at the international level is crucial for promotion of the rule of law generally and for condemning and punishing high level perpetrators, with the hope that similar such violations will not occur in the future. One can only agree. I would add that it is important to note that the increased complexity resulting from the proliferation of tribunals with international criminal jurisdiction is itself a product of current international relations among States. However, this is not to be seen as a negative development but rather a necessity that is to be embraced and encouraged. In my view, it is far more important that the international community demonstrates its commitment to reacting to the commission of crimes through the exercise of independent and impartial jurisdiction, irrespective of where the latter is carried out. Regardless of the overlap in competence that may occur between these tribunals now and in the future, they serve to reinforce and promote respect for the norms and principles of international humanitarian and human rights law and, ultimately, to prevent further violations.

INTRODUCTION

Preaching for the rule of law, as the rule of reason and justice, over war and the use of force, may, in the current international climate of violence and fear, appear futile and derisory. Preaching for international justice in an anarchic world where the UN collective security system seems to be crumbling, thus releasing the unilateral, pre-emptive use of military power, may be more than utopian, useless. In spite of these ‘realist’ objections, rather than acknowledging defeat, these obstacles, in the view of the author, should be taken as a challenge to intensify the ﬁght for the rule of law at both the national and the international levels, which remains a political, social and moral obligation: fair and eﬀective justice should still be promoted, so that the perpetrators of grave violations of human rights are judged and sanctioned, giving some relief to victims or their kin, and hopefully preventing further crimes. Even leaving behind the ﬁghting in ex-Yugoslavia and the Rwanda genocide, current events, at the time of writing, could lead to pessimistic conclusions. Ethnic massacres are commonplace in several African countries; the Israel/Palestine conﬂict is ever becoming more violent and bloody; war crimes are daily committed in Chechnya, ﬁghting continues in Iraq, terrorism strikes in many regions. Mass crimes, torture and other abuses are committed under the direction of ambitious and cruel leaders assured of impunity. Despots in power will not allow judgment of their own crimes. Stalin was never judged for the millions of deaths he caused. Idi Amin, who had ordered the death of 300 000 Ugandans, died in a comfortable exile in Saudi Arabia in 2003. The surviving Khmer Rouge leaders have not yet been judged. War crimes, crimes against humanity, genocide and other violations of humanitarian law and human rights should be judged and sanctioned by national courts. It is one of the main prerogatives and responsibilities of governments to apply justice fairly to all their citizens. Legislation should be in place, crimes must be identiﬁed, prosecuted and sanctioned, criminals, at all levels, should be accountable for their action: justice acts as both to repress and sanction in the name of the state, or the people, thus avoiding individual or collective vengeance (unending vendettas, kangaroo courts) and to deter future transgressions.

2

Introduction

This requires that valid legislation has been enacted and is applied, that national judges are independent from government, which is not the case in nondemocratic countries. The Geneva and The Hague Conventions left it to states to judge those individuals who breached their obligations under the Conventions. However, even in democratic countries, states have been loath to judge and condemn their own military staﬀ who were alleged to have committed war crimes. Senior military commanders and politicians have rarely, if ever, been indicted or punished by national courts for their role in ordering or allowing war crimes. Examples of the absence or weakness of national justice are given in Chapter . Dictators and despots in power or in exile responsible for massacres and torture have enjoyed impunity. Indonesia has opposed the creation of an international tribunal to judge its crimes in East Timor and has entrusted the prosecution of its military leaders to its own courts. However, the judgments rendered by its Special Human Rights Court have been found inadequate in relation to the crimes committed. Amnesties have been prevalent in Latin American countries to cover and ignore human rights violations committed by dictatorships. Only in 2003, under the leadership of President Nestor Kirchner, the Argentine Chamber of Deputies and Senate voted in August 2003 to annul the Full Stop and Due Obedience Laws which granted automatic immunity to all members of the military except those in positions of command. An estimated 5 000 people “disappeared” when Argentina was under military rule from 976 to 983. President Kirchner also revoked a government edict that prohibited Argentine oﬃcials from being handed over to foreign countries to face criminal charges abroad. Even in a democratic country like France, justice has been generally ineffective and slow to judge crimes against humanity committed by French collaborators during the German occupation of France, and during colonial wars, through a mix of popular ignorance or indiﬀerence, state-sponsored amnesia and amnesty. US war crimes in Vietnam have been hidden – those revealed have been lightly sanctioned. The Bush administration has denied justice to the Guantanamo detainees. The trial of Saddam Hussein by an Iraqi tribunal will be closely watched as a test case: are conditions in Iraq suitable for a fair trial, or should Saddam be tried by an internationalized, or an international, tribunal? Grave crimes, such as war crimes, crimes against humanity, genocide or torture are of concern to all humanity and their perpetrators, whatever their rank or status, must be brought to justice, no matter where the crime was committed, and regardless of the nationality of the perpetrators or of their victims. This is the foundation of the universal jurisdiction concept, which is reviewed in Chapter 2: judge or extradite. The principal obstacle to universal jurisdiction is the principle of national sovereignty, on the basis of which national authorities may reject requests for extradition, as an interference in matters within the domestic jurisdiction of states. Another limitation is the lack of national legislation to implement international instruments, or more generally, the lack of political will to prosecute alleged criminals, for reasons of internal politics or for diplomatic

Introduction

reasons. Only a few countries have incorporated universal jurisdiction into their legislation, and fewer have implemented it. Belgium adopted in 993 (complemented in 999) a universal jurisdiction statute which allowed Belgian courts to try cases of war crimes, crimes against humanity and genocide wherever they were committed and regardless of the alleged perpetrators’, or of the victims’ nationality. In August 2003, the statute was repealed, following diplomatic pressures and the realization that Belgian courts could not judge ‘all the world’s crimes’. Belgian courts will still judge a few remaining cases, including the complaints ﬁled against the former Chadian dictator Hissène Habré, under house arrest in Senegal. If national justice is “unwilling” or incapable to judge these ‘serious crimes’, the remaining options are impunity or international justice. International justice – the Permanent Court of International Justice and its successor the present International Court of Justice – has been created to settle civil disputes between consenting States, not criminal charges against individuals. The Nuremberg and Tokyo Tribunals The ﬁrst international eﬀort to make high-level oﬃcials accountable for their criminal actions, rather than only “punishing” their State, was the creation of the Nuremberg and Tokyo International Military Tribunals. In July 942, Churchill, Roosevelt and Stalin endorsed the St James Declaration, which explicitly repudiated retribution ‘by acts of vengeance on the part of the general public’ and declared that the ‘sense of justice of the civilized world’ required that the signatory powers place among their principal war aims the punishment, through the channel of organized justice, of those guilty of or responsible for these crimes, whether they have ordered them, perpetrated them or participated in them.

The outrage felt when the Nazi and Japanese atrocities were known encouraged the Allied governments, then joined by France, supported by public opinion, to create the Tribunals to judge and punish the major German and Japanese war criminals. The Nuremberg trial lasted from 4 November 945 to  October 946. Twenty-four defendants were indicted, including senior political and military leaders, high nazi oﬃcials. Twelve were sentenced to death by hanging, three to life imprisonment, four to time imprisonment, three were found not guilty and released. The Tokyo trial took longer – from 3 May 946 to November 948 – to come to disputed judgments. Seven defendants were condemned to death by hanging, the others were given jail sentences ranging from life to seven years.

3

4

Introduction

A major criticism of both Tribunals is their creation by the victors, and not by a widely-approved international treaty. The nationality of the judges and prosecutors – all from allied countries – was proof that this was ‘victors’ justice’. Additionally, only German and Japanese oﬃcials were judged: none of the crimes against peace or war crimes allegedly committed by the Allies were judged. Among the crimes against peace committed by the USSR: the aggression committed by both Germany and the USSR against Poland in August 939 – the Soviet aggression against Finland and the Baltic States between November 939 and June 940 – the Soviet Declaration of war against Japan of 8 August 945. Among war crimes allegedly committed by the UK, the USA and the USSR – the Katyn massacre of Polish oﬃcers of September 94 by Soviet troops, the British and American strategic air bombing of Hamburg, Dresden and other German cities . In the Far-East, the strategic air bombing of Japan’s major cities and the atomic bombing of Hiroshima and Nagasaki in August 945 by US air forces. Critics also cite the immunity granted by the US to the Japanese leaders of Unit 73, which carried out bacteriological warfare research and experimentation on prisoners of war, similar to the Mengele-led experiments carried out in Nazi concentration camps: these crimes against humanity were kept out of the Tokyo Tribunal’s jurisdiction. The political decision to grant immunity to Emperor Hirohito also faulted the equity of the Tokyo Tribunal. A serious legal wart of both Tribunals was ex post facto legislation: none of the previous international legislation in force at the time that the alleged crimes were committed provided for international tribunals to judge and sanction individual oﬃcials for such crimes. On the positive side, even though Nuremberg and Tokyo were imperfect, one-sided Tribunals, their creation, the trials and judgments made a signiﬁcant contribution to international criminal law and justice. Nuremberg established the principle and set the precedent that individuals at the highest levels of government and armed forces could be prosecuted and tried by an international tribunal for grave violations of international humanitarian law. It thus aﬃrmed, for the ﬁrst time in history, individual criminal responsibility at the international level for crimes against peace, war crimes and crimes against humanity. Even the limited application of the charge of ‘crimes against humanity’ by the Nuremberg Tribunal served as a basis and an inspiration for the Genocide and Apartheid Conventions and the extension of protection to civilian populations in the 949 Geneva Conventions and the 977 Protocols. ‘Nuremberg law’ complemented The Hague and Geneva laws. It served as an essential legal and judiciary basis for the later creation of the Tribunals for the Former Yugoslavia and for Rwanda, and for the creation of the International Criminal Court. Finally, the trials played an important political role in reducing the tensions between the victors and the vanquished, by substituting a judiciary process to vengeance. It also focused the charges on high oﬃcials, in an eﬀort to avoid longterm guilt on all the German and Japanese people.

Introduction

The Human Rights Regime The atrocities committed during World War II (the genocide of the Jews, war crimes, massive massacres, crimes against humanity) which were at the origin of the Nuremberg and Tokyo Tribunals also played a key role in developing a human rights regime, which had been ignored by the League of Nations. The Preamble of the UN Charter reaﬃrmed ‘faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women’. On 0 December 948, the Universal Declaration of Human Rights was adopted and proclaimed by the UN General Assembly ‘as a common standard of achievement for all peoples and all nations’. The non-binding Declaration was followed in 966 by two international Covenants, one on economic, social and cultural rights, and one on civil and political rights. Both Covenants entered into force in 976. In addition to setting minimum norms, UN committees were authorized to discuss human rights violations in speciﬁc countries, to conduct conﬁdential investigations of complaints by individuals. However, States’ violations of the norms are not sanctioned except by the limited adverse publicity given in UN reports and by UN meetings, and by the more public and critical exposure given by the non-governmental organizations (NGOs) and the media. A series of other international Conventions were adopted over the years to condemn violations of human rights in speciﬁc areas and/or to prescribe positive prevention action. In 948, the UN General Assembly, still under the inﬂuence of the Holocaust, approved the Convention on the Prevention and Punishment of the Crime of Genocide, which charges individuals ‘whether they are constitutionally responsible rulers, public oﬃcials or private individuals’, not States, for this crime. While those persons were normally to be tried by national courts, the Convention also referred to an alternative: trial by ‘such international penal tribunal as may have jurisdiction ...’ . The International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the General Assembly in 973, also imposes individual criminal responsibility on individuals for committing this crime, and also refers to an international penal tribunal as an alternative to a trial by a national court. At the regional level, both the 950 European Convention for the Protection of Human Rights and Fundamental Freedoms and the 969 American Convention on Human Rights have created a court of human rights. However, the courts judge countries, not individuals: they do not assign individual penal responsibility to individual violators of the Conventions. The International Criminal Tribunals for the Former Yugoslavia and Rwanda It took 45 years after the completion of the Tokyo trial for the resurrection of international criminal justice. In spite of the adoption of a number of human rights conventions, the concept that the violation of basic human rights should be judged and sanctioned at the international level was ‘frozen’ by the context of

5

Introduction

6

the Cold War. It also took two major criminal enterprises, civil war and ethnic cleansing in ex-Yugoslavia, and the Rwandan genocide, to force governments to, again, face the issue of the accountability of leaders for massacres and crimes against humanity. Based on the Nuremberg precedent, the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) were created respectively in 993 and 994. The arrest and prosecution of former President Milosevic are a positive milestone for the ICTY, while the continued absence and impunity of the other major alleged war criminals, Karadzic and Mladic, are a continuous embarrasment for the Tribunal and for the Allied Powers. The arrest and judgment of former Prime Minister Kambanda and the trial of all the ministers in his government constitute a major achievement for the ICTR. The main achievement of the Tribunals has been to conﬁrm the Nuremberg precedent in aﬃrming the individual responsibility of persons at the highest political and military levels. The Tribunals have also strengthened international humanitarian law. They have sanctioned genocide, for the ﬁrst time. A major progress over Nuremberg, they are real international tribunals, not tribunals of the victors. Their limitations have also been identiﬁed: a slow process, poor cooperation by several governments, political interference, high costs, management problems, no evidence that the Tribunals have contributed to restoration and maintenance of peace, nor to reconciliation of the populations involved in the wars or in the genocide. The achievements, shortcomings and obstacles faced by the Tribunals are reviewed in Chapters 3 and 4. Mixed National/International Tribunals The creation of the Special Court for Sierra Leone by the government of Sierra Leone and the UN in 2002 has invented another category of tribunals, combining national and international elements. This hybrid Tribunal is a mixed national/international court, with a majority of international judges over Sierra Leonean judges. Less costly than the ICTY and the ICTR, this court has the built-in advantage of being closer to the Sierra Leone population. The ﬁrst indictments were announced in March 2003. In June, the Tribunal indicted Charles Taylor, the former president of Liberia, for war crimes and crimes against humanity. Another formula is that adopted in Kosovo and East Timor: use of local courts, or creation of special panels complemented by international judges and prosecutors. A diﬀerent formula has ﬁnally (reluctantly) been accepted by the UN in 2003 to judge the surviving genocidal Khmer Rouge leaders. The Cambodia tribunal is another mixed national/international court, but with a majority of Cambodian judges. Chapter 5 describes the current status and achievements of these courts, and assesses their relative value in relation to full international tribunals.

Introduction

The International Criminal Court The adoption of the Statute of the International Criminal Court in Rome in July 998. It was hailed by the UN Secretary-General, Koﬁ Annan, as a ‘giant step forward in the march towards universal human rights and the rule of law’ (Chapter 6). The Statute came into force on  July 2002, having been ratiﬁed by more than 60 countries, the required minimum. By September 2004, 97 countries had ratiﬁed the Statute. Its 8 judges have been elected and the respected Argentine jurist, Luis Moreno Ocampo, has been sworn as Chief Prosecutor. More than 800 complaints have been received and two countries, Uganda and the Democratic Republic of the Congo have referred the situation in their countries to the Court. Why this creation and the unexpected number of signatures and ratiﬁcations? In the context of globalization, world public opinion is better and more quickly informed of serious crimes committed in various parts of the world, causing outrage and forcing governments to ensure that criminal leaders are identiﬁed, prosecuted and sanctioned. The extension of the human rights regime has promoted the need for judiciary accountability in addition to or in lieu of political accountability. There is a realization that the power of arms does not solve all problems: the peaceful recourse to justice is worth exploring. NGOs have played a determining role in the adoption of the Statute. They now promote ratiﬁcations by more countries and monitor the ﬁrst steps of the Court. The promoters of the ICC have justiﬁed its creation as follows: – To prosecute and sanction perpetrators of major human rights crimes; – To prevent future violations of international humanitarian law, as these will be seen as forbidden and punishable; – To stimulate national governments to strengthen their own enforcement of human rights, as national justice has primacy over the ICC (the principle of complementarity). This Chapter also describes brieﬂy the contents of the Statute, the main characteristics of the Court, the role of the Assembly of States Parties, and the initial strategy of the Prosecutor. Is the creation of the Court already having an eﬀect on potentially criminal leaders? Will those responsible for ordering or allowing war crimes, crimes against humanity, genocide and other grave breaches of international humanitarian law be more likely to be indicted and judged? Many years’ experience will be needed to reply to these questions. Friends and Foes of the Court The Court has many friends and a powerful enemy (Chapter 7). Friends include the UN Secretary-General, European Union members, other countries and international organizations, parliamentarians, the International Committee of the Red Cross, NGOs, and US groups and individual activists.

7

Introduction

8

The Court’s major enemy is the USA. Following the US negative vote when 20 other countries adopted the Statute of the ICC in Rome on 7 June 998, the Bush Administration launched an aggressive and brutal campaign against the new institution by forcing many countries, under threats of cutting military aid and ﬁnancial grants, to sign bilateral immunity agreements, in violation of the ICC Statute. These grant immunity to US citizens from the Court’s jurisdiction. The US legal and political arguments justifying the US position are explained in this Chapter, with an assessment of their merits. The same Chapter refers to the more discreet opposition to the Court assumed by China and Russia, formally on the grounds of national sovereignty, and in fact for fears that these countries’ violations of human rights, crimes against humanity, and war crimes (in the case of Russia, in Chechnya) make them particularly vulnerable to complaints to the Court. The International Court of Justice and International Criminal Tribunals The International Court of Justice has not been given criminal jurisdiction. It judges states, not individuals. In spite of their diﬀerent jurisdiction, relationships between the International Court of Justice and the international criminal tribunals have been established. While there is no centralized structure and hierarchy of international tribunals, there have been a few links, some interference and a few conﬂicts between these judicial institutions. These are related in Chapter 8. A Conclusion (Chapter 9) assesses the relative progress achieved by the emergence of an international criminal justice system, as well as the many obstacles it faces. It formulates some of the many questions raised by the creation of the ICC, and conditions for its success. Notes As for the preceding two books on the same subject, ‘Judging War Criminals – The Politics of International Justice’, and ‘Judging Criminal Leaders – The Slow Erosion of Impunity, the present book is not a legal treatise, although references are made to legal texts and interpretations. This book is another attempt by the author, an independent observer and an internationalist, to describe, assess and promote the development of the emerging international criminal justice regime, through the creation of international criminal tribunals and the progress of universal jurisdiction, without losing sight of the political constraints of this enterprise. The author’s continued interest in this domain is no doubt related to his short experience (March-June 946) as a legal secretary to Henri Donnedieu de 

Beigbeder, Yves, Judging War Criminals, The Politics of International Justice, Foreword by Theo van Boven (Palgrave, Basingstoke/New York, 999), and Judging Criminal Leaders, The Slow Erosion of Impunity, Foreword by Theo van Boven (Martinus Nijhoﬀ Publishers, The Hague/London/New York, 2002).

Introduction

Vabres, the French Judge at the Nuremberg Trial, and, of course, to the many recent initiatives and achievements in this ﬁeld. The author may be labelled as ‘anti-american’, in view of several references to war crimes allegedly committed by the US military in Vietnam, the denial of justice to the Guantanamo detainees or the US ‘crusade’ against the International Criminal Court. He may also be accused of being anti-French on the grounds that he has recalled war crimes committed by the French military in colonial wars. These potential charges are not valid. The author is a long-time admirer of the US democracy, and, as a loyal French citizen, he appreciates France’s contribution to the development of human rights and to international humanitarian assistance. However, he believes that serious breaches of international humanitarian law and human rights by leaders and nationals of any country, including his own. should be exposed and condemned. In this respect, democratic countries whose citizens enjoy the rule of law, whose governments have signed and ratiﬁed the Geneva Conventions and other international human rights instruments, which often act as censors of other countries’ abuses, these countries have a particular responsibility: perhaps more than other countries, they are expected to abide by the rules and to eﬀectively sanction their own leaders or military personnel accused of such violations. It is important that their past or present failings, which may be legally covered by amnesties or statutes of limitations, or conveniently forgotten, be publicly recalled and denounced, so that they may be corrected, with the hope that they will not be repeated. Many thanks are due to those who have given the author advice or information, and reviewed this text, including Judge Fausto Pocar who has kindly written a foreword to this book. The author is also grateful for the information provided by several oﬃcials at the International Criminal Court and by responsible ofﬁcers at the Coordination for the ICC during his visit in The Hague on 22 and 23 September 2004. The editing skills of Mandy Eggleston are, again, gratefully acknowledged. Yves Beigbeder, Thonon les Bains France

9

LIST OF ABBREVIATIONS

ACTA AI ECOMOG ECOWAS EU FIDH HRW ICC ICG ICJ ICRC ICTR ICTY ILC KFOR NATO NGO OTP PrepComm RPF UN UNOMSIL UNPROFOR UNTAC UNTAET

Alien Claims Tort Act Amnesty International Military Observer Group of the Economic Community of West African States Economic Community of West African States European Union International Federation of Human Rights Leagues Human Rights Watch International Criminal Court International Crisis Group International Court of Justice International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Law Commission Kosovo (NATO) Protection Force North Atlantic Treaty Organization Non-governmental organization Oﬃce of the Prosecutor Preparatory commission for the International Criminal Court Rwandan Patriotic Front United Nations United Nations Observer Mission in Sierra Leone United Nations Protection Force United Nations Transitional Authority in Cambodia United Nations Transitional Administration in East Timor

LIST OF PRESENTATIONS

2. 4 Principles on the eﬀective exercise of universal jurisdiction

64

. Number of individuals publicly indicted since the inception of the ICTY, by categories, as of January 2004

76

. Sequence of ICTR activities, November 994-January 2004

0

6. Ratiﬁcation status of the ICC Statute by Regions as of 24 September 2004

48

CHAPTER 1

THE WEAKNESSES OF NATIONAL JUSTICE

States have an obligation under international law to investigate violations of international humanitarian law or human rights law, to take appropriate measures in respect of the alleged perpetrators, to ensure that they are prosecuted, tried and, if so decided by the judge, sentenced, and to provide the victims with eﬀective remedies. The Joinet report has recalled the primacy of national justice in relation to international justice, subject to certain conditions: It shall remain the rule that national courts normally have jurisdiction, particularly when the oﬀence as deﬁned in domestic law does not fall within the terms of the international court. International criminal courts shall have concurrent jurisdiction where national courts cannot yet oﬀer satisfactory guarantees of independence and impartiality, or are physically unable to function

Unlike the Statutes of the International Criminal Tribunals for the ex-Yugoslavia and for Rwanda giving primacy to the international tribunals, national courts have primacy over the International Criminal Court in investigating and prosecuting crimes, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution. Built within the history and culture of a particular country, national justice beneﬁts from the national state internal sovereignty and authority, police and investigative powers, the right to eﬀect custody of accused, to ensure that sentences are carried out. It applies national law, a law which evolves with the evolution of mentalities, themselves submitted to external inﬂuences, and directed by national leaders and legislators. Sited in their own countries, national courts are close to the people, justice agents speak its language, its procedures are well known, and if properly explained and practiced, judgments are well accepted. The primary jurisdiction of national courts requires ﬁrst that they are ‘physically able to function’, that they have the necessary physical, ﬁnancial and manpower resources to render justice. Secondly, their functioning should respond to the standards set by the 966 International Covenant on Civil and Political Rights. There should be no arbitrary arrest or detention – any person arrested

14

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or detained on a criminal charge is to be brought promptly before a judge – everyone is entitled to a ‘fair and public hearing by a competent, independent and impartial tribunal established by law’ – accused have the right to be presumed innocent, they have the right to be informed promptly of the charges against them – they must have adequate time and facilities for the preparation of their defence, to communicate with counsel of their own choosing, to be tried without undue delay, to be tried in their presence and to defend themselves in person or through legal assistance of their own choosing, to examine witnesses, not to be compelled to testify against themselves or to confess guilt. They have the right that their conviction and sentence may be reviewed by a higher tribumal. Anyone charged with a criminal oﬀence should beneﬁt from the principle of non-retroactivity of national and international laws , except that a person may be tried and punished ‘for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations’.2 These requirements are not always satisﬁed. Conventional or customary international law on war crimes, crimes against humanity and genocide may not have been integrated in national legislation, or have been integrated with limitations. The independence of the judiciary at all levels may not be guaranteed by the country’s constitution or legislation, or guarantees of independence may not be respected in fact by the government. Criminal codes may not provide the required safeguards of due process, or these are not respected. There may be a lack of trained and experienced judges, prosecutors and lawyers, a lack of political will to arrest and judge alleged perpetrators, a lack of resources for the conduct of investigations, the hearing of witnesses and victims, the search for documentation, the setting-up and maintaining of records. Military personnel may be unduly protected by politically dependent, or too friendly, military courts. In some countries, newly-installed governments may engage in ‘victor’s justice’ as a judicial revenge against the former political, military and administrative leaders. Such judiciary failings or weaknesses are found in many countries. Even countries with a long democratic tradition have delayed rendering justice in cases of war crimes and crimes against humanity committed by their own nationals, have granted amnesties to cover these crimes, or have conveniently ‘forgotten’ the events which made these crimes possible. Amnesty or prescription may block prosecution. Alleged criminals who have ﬂed the country of their crimes may be unduly protected by the right of asylum or by the refusal of the host country to grant extradition on the grounds of the protection of national sovereignty. When crimes are ordered or allowed to be committed by political leaders and senior military oﬃcials, it is unlikely or even impossible that these leaders may be indicted and judged by national courts as long as they are in power. Most former despots removed from power and sent into exile have enjoyed impunity. As a rare exception to despots’ impunity, former ‘Emperor’ and President for life Jean Bedel Bokassa, on his return to his country, was judged and condemned to death by a Central African court in March 986 for assassination and embezzle-

The Weaknesses of National Justice

ment. His sentence was later commuted to life imprisonment. He served only seven years in prison before he was ﬁnally pardoned by his successor. With no attempt to recall all past and present cases of leaders responsible for heinous crimes in their own country who have enjoyed, or are now enjoying impunity, this Chapter will refer only to a few selected countries and leaders, as representative examples of the weakness or incapacity of national justice to deal with such cases, for political or other reasons. These include a Communist country, North Korea and its present ruler, Kim Jong Il, -Ethiopia with its former Communist ruler Mengistu now in exile – Uganda and its former head of state, Amin Dada who died in exile – then, countries under strong military inﬂuence, Indonesia and Latin American countries. Reference is then made to two democracies, France and the USA, which generally abide by the rule of law but have committed violations of international humanitarian law mainly in war situations. The rejection by the USA of the protection of the Geneva Conventions to the Guantanamo detainees is then recalled as an example of denied justice, justice later restored by the US Supreme Court. Finally, the ‘test case’ of the Saddam Hussein’s trial is considered. Selected Countries and Responsible Leaders North Korea: Kim Jong Il

North Koreans have suﬀered for many years of a ‘famine in slow motion’, in the words of the World Food Programme, because of its government policies. According to a study by the Food and Agriculture Organization of the United Nations (FAO), more than 3 million Koreans suﬀered from malnutrition in 2002. Government statistics show that 45 per cent of North Korean children under ﬁve are chronically malnourished. Under the leadership of Kim Jong Il, repression of fundamental freedoms, public executions, religious repression and torture continue to be reported.3 According to a 2003 report written by David Hawk, an American human rights investigator, ‘All the prison facilities are characterized by very large numbers of deaths in detention from forced, hard labour accompanied by deliberate starvation-level food rations’.4 A BBC programme broadcast on 8 February 2004 said that North Korea was killing political prisoners in experimental gas chambers and testing new chemical weapons on women and children, thus emulating the atrocious medical ‘experiments’ of Josef Mengele in Nazi Germany.5 North Korean oﬃcials have repeatedly said that human rights violations do not occur in their prison system. The communist dictatorship installed by Kim Il Sung and his son, Kim Jong Il rejects access of human rights groups to prisons, hides abuses and denies all charges of violations of human rights. In 997, North Korea announced its ‘withdrawal’ from the International Covenant on Civil and Political Rights (ICCPR). Improvement could only come from regime change. In the meantime, North Korean leaders enjoy total impunity for their crimes against their own people.

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16

Ethiopia: Mengistu Haile Mariam

Lieutenant Colonel Mengistu helped overthrow Emperor Haile Selassie in 974, when 59 of the Negus’ ministers and oﬃcers were killed. He instaured a Communist dictatorship called the Dergue. Hundreds of thousands of young people were expelled from Addis Ababa and sent to rural areas for Marxist re-education. During the Red Terror from 976 to 978, tens of thousands of Ethiopians were killed, mostly young victims. In 984-985,  million Ethiopians starved in the northern province of Tigré during a famine intensiﬁed by the government in order to depopulate rebel areas. The number of deaths is estimated at between 40 000 and 00 000. Hundreds of thousands of government opponents, former imperial government oﬃcials, critics and other ‘counter-revolutionaries’ were arbitrarily imprisoned. Torture of political prisoners was systematic and widespread. The regime was overthrown in 99 by the Ethiopian Peoples’ Revolutionary Front. Mengistu ﬂed to Harare, Zimbabwe, on 2 May, in a plane sent by the US government,6 where President Robert Mugabe granted him political asylum. Mengistu was accused of genocide, crimes against humanity and war crimes by the Special Prosecutor’s Oﬃce in Ethiopia, created in August 992. In the autumn of 994, Zimbabwe refused to extradite him to Ethiopia to be presented to the Ethiopian court. Mengistu is a close friend of Mugabe, holds a diplomatic passport and lives in a heavily-guarded mansion in Harare. On 28 December 999, in an interview with the South African daily, The Star, he said that the Red Terror was merely ‘a ﬁght between two diﬀerent social groups’, one of which was trying to overthrow the government. ‘The so-called genocide was this war in defence of the revolution’. At the end of 2002, the trial of 46 senior oﬃcials of the Mengistu government, charged with genocide and crimes against humanity, was continuing. Over  000 former government and ruling party oﬃcials were in custody. They were accused of political killings during the Red Terror campaign. Between July 2000 and July 200, 478 had been convicted and 328 acquitted. Under Mugabe’s protection, Mengistu has exempted himself from his country’s justice.7 Uganda: Idi Amin Dada Oumee

On 25 January 97, while the Prime Minister Milton Oboto was out of Uganda attending a Commonwealth conference in Singapore, Amin took power through a military coup,with the support of the US and the UK, concerned about Oboto’s trend towards the USSR. He then initiated a terror regime. Two-thirds of the army’s 9 000 soldiers were executed during Amin’s ﬁrst year in power. In 972, he expelled 40 000 Ugandans of Asian origin. To secure his regime, Amin launched a campaign of persecution against rival tribes and Obote supporters, murdering approximately 300 000 Ugandan citizens. In 976, he declared himself president for life. His reign ended on  April 979, when the Tanzanian forces took Kampala, Uganda’s capital. Amin ﬂed to Libya, then to Iraq, and ﬁnally settling in

The Weaknesses of National Justice

Jeddah, in Saudi Arabia, where he was allowed to stay provided he kept out of politics. In a 999 interview to a Ugandan newspaper, he expressed no remorse for the abuses of his regime. To the Italian journalist Riccardo Orizio, he conﬁrmed that he had no remorse, only nostalgia.8 Amin died in hospital in Jeddah on 6 August 2003. He was not prosecuted for his massive crimes. Indonesia: Generals Suharto and Wiranto

In 965, the Indonesian army, under the direction of General Suharto and with the support of the CIA, took power from President Sukarno, in reaction to a failed coup by junior oﬃcers. The army initiated and encouraged the killing of Communist Party leaders, members and supporters. The victims included thousands of Chinese, suspected because China had become Communist, but also targets of long-standing ethnic resentment in view of their domination of commerce and trade. The number killed is estimated at about 500 000 for the period December 965 to mid-966, and the number of those arrested also at 500 000. The massacres aimed at eliminating the Communist threat from Indonesian politics, within the context of the East-West confrontation that provided US support to the Indonesian political and military leaders. General Suharto became President in 968 and remained in this position until he resigned on 2 May 998.9 In 2000, Suharto came under investigation for corruption that occurred during his presidency, not for the 965-966 massacres.The trial was set to begin on 3 August but Suharto was found permanently physically and mentally unﬁt to stand trial. Belatedly, in January 2003, the Indonesian National Commission on Human Rights announced that it would conduct a wide-ranging inquiry into violations committed during Suharto’s tenure. Beginning with an investigation into the massacre of communists that followed the coup attempt of 965, the 5-strong team will determine whether human rights violations took place, whether state policies provided a basis for rights violations, and whether Suharto was directly involved.0 On 7 December 975, Indonesia invaded East Timor, with the ‘understanding’ of President Ford and secretary of state Henry Kissinger, who met with Suharto in Jakarta on 6 December. It is estimated that 200 000 of East Timor’s 975 population of about 650 000 were killed as a result of the occupation which lasted 24 years. In September 999, the Indonesian National Army and Timorese militia went on a campaign of murder, arson and forced expulsion after the people of East Timor voted for independence in a UN-administered referendum. An estimated  000 to 2 000 East Timorese civilians lost their lives in the months before, and days immediately after the voting. Approximately 500 000 people were forced from their homes or ﬂed to seek refuge. According to Human Rights Watch, the violence was part of a systematically planned policy by elements of the Indonesian government and army to

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18

prevent the people of East Timor from freely participating in the referendum, and to punish them for voting for independence. The crimes included mass murder, torture, forced disappearance, mass forcible deportations, the destruction of property, rape and sexual violence against women and children. These crimes were part of a pattern of gross violations of international human rights and humanitarian law which, in many cases, constituted crimes against humanity. Following international condemnation of the violence and to avoid the creation of an international tribunal for East Timor on the lines of the ex-Yugoslavia and Rwanda International Criminal Tribunals, Indonesia created the Ad Hoc Human Rights Court on East Timor in Jakarta. 8 soldiers and militiamen, and a few civilians, were brought before the Court. Of these defendants, 2 have been acquitted. Others received light sentences: Major General Adam Damiri, the regional commander at the time of the violence, was found guilty of crimes against humanity and sentenced to three years in prison. The Court did not indict the former Indonesian military chief, General Wiranto, who was the top commander at the time. In Indonesia, the military still prevail over justice: President Megawati Sukarnoputri sees the military as the institution that enforces national unity. The creation of a Special Panel in East Timor to judge these crimes is reviewed in Chapter 5. Military Regimes in Latin America Generations of Latin American peoples have suﬀered under military dictatorships or one-party systems, with their inevitable accompaniment of exactions through the brutal suppression of political opposition, the abridgment of basic civil and political rights, and fundamental freedoms, and assured impunity for those political and military leaders responsible for these abuses. In the climate of the Cold War, military coups were often justiﬁed as resistance against Marxism. Amnesties were widely granted, on military pressure, on the grounds that they were required in order to facilitate a slow and diﬃcult transition to democracy and to promote ‘national reconciliation’ – thus ensuring impunity for the military perpetrators. The longest civil war in Latin America, the 36-year civil war in Guatemala, a nation of 0.5 million, began in 960. The war pitted a rightist military-controlled government against a leftist insurgency. According to a UN-sponsored truth commission, as many as 200 000 people were killed during the civil war, mostly by the army and paramilitary forces; 40 000 are listed as ‘disappeared’, thousands more have been tortured, raped or displaced from their homes. Over 400 massacres were documented by the truth commission, constituting ‘acts of genocide’. Most victims were unarmed civilians. In December 996, the Guatemalan Congress approved a ‘law of National Reconciliation’ that extinguished criminal responsibility for oﬀences deemed to be political. The law was not to apply to the crimes of genocide, torture and forced disappearance. However, human right groups labelled the law as a disguised full amnesty.

The Weaknesses of National Justice

According to a Human Rights testimony given before the US Congressional Human Rights Caucus on 6 October 2003, the situation in Guatemala was both frustrating and alarming.2 Frustrating because, seventeen years after the return of civilian rule and seven years after the signing of peace accords, Guatemala had made little progress toward securing the protection of human rights and rule of law, the essential features of a functioning democracy. It was alarming because on-going acts of political violence and intimidation threatened to reverse the little progress that had been made in recent years. A more positive development is the proposed creation, in 2003, by the Guatemalan government, the human rights ombudsman and civil society organizations of a Commission to investigate illegal groups and clandestine security apparatuses. The Commission will examine forms of organized crime that are currently active and highly dangerous. Its longer-term goal is to strengthen the country’s justice system. Chile: Augusto Pinochet

In Chile, a US-supported coup by the Chilean armed forces overthrew President Salvador Allende on  September 973 (the Latin American ‘9/’).3 On 20 June 974, General Augusto Pinochet proclaimed himself supreme chief of the nation as both head of state and commander in chief of the military. The ﬁrst phase of the dictatorship (973-975) was aimed at the physical elimination of the political opponents. In the ﬁrst four months of the junta, thousands of civilians were murdered, were jailed, killed or had ‘disappeared’. By the end of 994, the total number of people who had been killed or had disappeared under the military dictatorship was oﬃcially acknowledged to be more than 3 000. In April 978, an amnesty law protecting the perpetrators of crimes committed between  September 973 and 0 March 978 was adopted. From 982 to 990, Chile went through a prolonged journey back to democracy. Pinochet remained president until December 989, when Patricio Aylwin, candidate of the moderate opposition, was elected to this function. Pinochet still retained control of the army as its commander. On 4 March 99, President Aylwin recognized the guilt of the Chilean state. On 6 October 998, Pinochet was arrested in London on the basis of an arrest warrant of Baltasar Garzon, a Spanish judge. On 2 March 2000, Jack Straw, the British Home Secretary, refused Pinochet’s extradition to Spain on medical grounds (alleged mental incapacity): he returned to Chile. On 29 January 200, Chilean Judge Juan Guzman indicted Pinochet for kidnapping and murder: on 9 July, the Santiago Appeals Court suspended the proceedings against Pinochet also on health grounds, a decision conﬁrmed by the Supreme Court in July 2002. In July 2003, President Lagos issued a proclamation, ‘There is no to-morrow without past’ proposing the indemniﬁcation of victims and encouraging the military to give information on the fate of the disappeared. By the end of 993, judges appointed exclusively to investigate human rights cases had opened proceedings against more than 300 military oﬃcers, including 22 generals, accused of abuses during the Pinochet years. Military leaders have been convinced to

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cooperate with the investigations. In August 2003, eight retired generals signed a letter, reportedly orchestrated by the current army commander, General Emilio Cheyre, in which they acknowledged that they had exhumed and then hidden the bodies of political prisoners during the Pinochet era.4 On 28 May 2004, in a case brought by relatives of 20 victims of Operation Condor, the Santiago Appeals Court ruled that Pinochet be stripped of his immunity to face trial for kidnapping, illegal association and torture. On 26 August, the Supreme Court lifted Pinochet’s immunity from prosecution for past violations of human rights, by a majority of 9-8.5 Thus continues the belated, unexpected and suspenseful judiciary prosecution of the former dictator at international and national levels. Pinochet is now 88. During the military dictatorship in El Salvador from 979 to 992, it is estimated that 75 000 victims were killed. In March 993, the National Assembly approved a government-backed amnesty. Progress in Argentina

The military dictatorship in Argentina lasted from 976 to 983. Two years after democracy was restored, the members of the junta received stiﬀ sentences for the torture, kidnapping and the murder of approximately 30 000 people.Thousands of people were dumped in rivers and in the sea, buried and reburied in mass graves, made to disappear. However, under President Raul Alfonsin, in 986, the Full Stop Law limited further trials. In 987, the Due Obedience Law excused the vast majority of oﬃcers on the grounds that they were only following orders. In 990, President Carlos Menem pardoned former chiefs of the junta who had been sentenced to life imprisonment. On 20 March 993, the National Assembly approved a government-backed amnesty. Argentine courts backtracked on amnesty in a few cases: in a major one, Jorge Videla, Argentina’s former military dictator, was placed on 0 July 200 in detention, pending a probe of his alleged role in the Condor Plan. The Condor Plan, established in Santiago in 975 with CIA support, was a secret operation by military dictatorships in Argentina, Chile, Uruguay, Paraguay, Bolivia and Brazil, through which governments combined eﬀorts to hunt down and kill political opponents who sought refuge in neighbouring countries. It involved using illegal covert means including assassination of opposition leaders. Videla was the ﬁrst former military leader from the six South American countries involved in the Condor Plan to face justice in the conspiracy. Earlier in 200, Argentine courts asked, in the course of a probe into the Condor Plan, for the extradition from Paraguay of former dictator Alfredo Stroessner, who was given asylum in Brazil in 999, and the former head of the Chilean secret police, Manuel Contreras.6 During the 990s, human rights groups campaigned and litigated to ensure that judicial investigations into ‘disappearances’ and other crimes continued, even though prosecution was barred.

The Weaknesses of National Justice

When President Nestor Kirchner took oﬃce on 25 May 2003, he said in his inaugural address that he intended to exercise power ‘without rancor but with memory’. He purged the military high command and, on 25 July 2003, he revoked a government edict that prevented the extradition of Argentine nationals to stand trial in other countries. Under his leadership, the Argentine Chamber of Deputies and Senate voted in August 2003 to annul the Full Stop and Due Obedience Laws. The legislative bodies also gave constitutional status to the 968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which Argentina had just ratiﬁed. On 0 June 2003, at the request of Spanish judge Garzon, Mexico’s Supreme Court authorized the extradition to Spain of Ricardo Miguel Cavallo called ‘Serpico’ for crimes of terrorism and genocide.7 Cavallo, a former Argentine naval oﬃcer, is accused of kidnapping, torturing and murdering more than 200 civilians, including pregnant women, at the School of Naval Mechanics in Buenos Aires, which functioned as a clandestine torture centre. Some 5 000 political opponents went through the School, most of whom have disappeared. This was the ﬁrst extradition based on the principle of universal jurisdiction: Cavallo was extradited from Mexico to Spain for grave violations of human rights allegedly committed in a third country, Argentina (see Chapter 2). On 25 July, Argentine judge Rodolfo Canicoba Corral authorized the temporary detention of one civilian and 45 ex-servicemen, some of whom had previously been leaders of the junta. They were accused by judge Garzon of genocide, torture and terrorism who asked for their extradition to Spain. However, the Spanish government did not transmit the extradition request to Argentina, on the grounds that Argentine tribunals were competent to judge them. In September 2003, Alfredo Astiz, a former navy captain, known as the ‘Blond Angel of Death’, was arrested in Argentina. He had been convicted in absentia and sentenced to life imprisonment by French courts in 990 for the murder of two French nuns.8 Progress in Mexico

The situation in Mexico cannot be compared with those in Argentina, Chile and Guatemala in terms of violent political oppression and numbers of victims. Still, the people of Mexico were long under the yoke of an enforced one-party system, which allowed abuses to remain unpunished and denied: the Institutional Revolutionary Party (an oxymoron) has had a near monopoly of power at all levels since 929. On 2 October 968, in the Tlatelolco section of Mexico City, government troops opened ﬁre on a student demonstration, killing or wounding hundreds of protestors during the country’s ‘dirty war’ in the 970s and early 980s. In the coming decade, the Mexican government carried out repeated and systematic human rights abuses, including false arrest, routine torture, disappearances, murder and extortion by local police and federal security forces. Targets have included political and labour ﬁgures, journalists, human rights activists, criminal detainees, and with regard to extortion, the general public.9 The

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one-party rule ended in July 2000 with the election of President Vicente Fox. In November 200, President Fox announced the creation of a mechanism aimed at redressing past judiciary failures, a special prosecutor’s oﬃce that would investigate and prosecute abuses committed against members of political and social groups during the previous regime. The President ordered the release of millions of classiﬁed documents from the government agencies that had been involved in internal security operations. The special prosecutor’s ﬁrst attempt to indict former oﬃcials was dealt a major setback in March 2003 when a federal judge refused to issue arrest warrants, arguing that the time allotted by the statute of limitations for the crime had expired. On 5 November 2003, the Mexican Supreme Court unanimously rejected this ruling, ﬁnding that the statute of limitations on abduction does not begin to run if the victim’s body remains missing – thus following the practice of Chilean judges intent on circumventing amnesties. The Court thus decided to authorize the prosecution of the perpetrators of a 975 case of forced disappearance. This will allow the possibility of prosecution of former oﬃcials implicated in the kidnapping of political opponents in the 960s and 970s. Still, the NGO Human Rights Watch deplored that the special prosecutor’s oﬃce had been seriously undermined by a lack of resources, limited access to declassiﬁed documents and a lack of cooperation by the military.20 Criminal Justice in Democratic Countries Even in countries with well-established democratic credentials, national justice has often been slow, or unwilling to judge their own political and/or military leaders and perpetrators at lower levels allegedly responsible for allowing, covering up or committing war crimes and crimes against humanity. French amnesties and amnesia

About 76 000 of the 320 000 Jews in France during the war were arrested and deported to Germany between 94 and 944, in implementation of the Nazi policies, but with the eﬃcient cooperation willingly given by the Vichy administrative and police authorities. Charges of crimes against humanity committed against the Jews during the Second World War were only brought against a few French oﬃcials in the 980s. The ﬁrst Frenchman to be tried and sentenced on those grounds was Paul Touvier, at the age of 8, almost ﬁfty years after he ordered the execution of seven Jews when serving in a pro-Nazi militia. He had been twice condemned to death in absentia and had been pardoned by President Pompidou in 97 at the behest of senior Catholic Church oﬃcials. On 20 April 994, he was sentenced to life imprisonment for complicity with crimes against humanity. He died in the prison hospital on 7 July 996. Three more senior Vichy oﬃcials were to be tried, but two died before their trials could be held. In January 997, the third one, Maurice Papon, age 86, was ﬁnally ordered to stand trial for the deportation and deaths of 690 French Jews

The Weaknesses of National Justice

between 942 and 944 while he had served the Vichy government as secretarygeneral of the regional ‘préfecture’ in the south-west of occupied France. After World War II, De Gaulle allowed him to hold senior administrative posts. He was budget minister under President Valery Giscard d’Estaing, and enjoyed the protection of President François Mitterand, himself a former Vichy functionary. On 2 April 998, he was sentenced to ten years’ imprisonment, also for complicity with crimes against humanity. He was freed in September 2002 on health grounds, in the name of ‘principles of humanity’, principles which he had violated as a Vichy prefect. The legislative process which ﬁnally allowed for such trials was as slow and reticent as the judiciary one. A law of 964 made reference to the Charter of the Nuremberg International Military Tribunal, and thus to crimes against humanity, but it covered only crimes committed by the Axis Powers during the second World War. It was only in 992 that the crime of genocide, other crimes against humanity, war crimes and participation in a group or conspiracy in order to prepare such crimes, were included in the New French Penal Code (Art. 2. and 22.). However, prosecution against these crimes would only be receivable against suspects having committed such crimes after the entry into force of the New Code, on  March 994. This provision is in violation of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 968. In June 2003, the Cour de Cassation, the highest judiciary body, rejected a complaint introduced by the International Federation of Human Rights Leagues for the refusal of a lower court to accept jurisdiction for crimes against humanity of General Aussaresses during the Algerian War. The Court considered that these acts were amnestied, and customary international law could not replace national legislation. French law does not recognize universal jurisdiction for genocide and crimes against humanity. French war crimes and crimes against humanity committed by the military forces in colonial wars were either not revealed or amnestied. For example, the repression of a revolt in Madagascar by French troops in 947-948 caused an estimated 89 000 Malagasy deaths, while the revolt itself caused the death of 550 Europeans and  900 Malagasy inhabitants.2 This massacre was hardly known to the French population at the time, and is still unknown to them now. This ignorance was due to the French military and administrative censorship, more generally to the home population’s lack of interest for this colonial incident. In France itself, the population was still ﬁghting against the economic deprivations following World War II. Another colonial war, in Indochina was attracting more interest. The French political and military authorities hid or denied the exactions. No sanctions were taken or even envisaged at any level against those responsible for the massacre and related torture. The movement towards Algerian independence caused more massacres by the French and torture, while the independentist movement, the Front de Libération Nationale (FLN) used guerilla tactics and terror against the French settlers.22

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On 9 May 945, between 8 000 and 0 000 Algerians were massacred by the French army to crush a rebellion in Sétif and other Algerian towns. In 955, another massacre took place in Philippeville: 2 000 victims. The Algerian war proper started in November 954 and ended with the Evian Agreements of March 962. Up to two million French military forces fought during the war. French military deaths are estimated at 25 000, plus 65 000 injured and 485 disappearances The undeclared war caused 2 788 deaths, 7 54 injured and 875 disappearances in the French civilian population in Algeria. Algerian deaths are estimated at 500 000. The practice of torture by the French army or police during the war was only revealed in 2 000 and later, through testimonies of victims and confessions of torturers. Following the 962 ceaseﬁre, most of the French settlers left Algeria for France in an unstoppable exodus. In newly independent Algeria, the FLN executed, tortured or burned from 20 000 to 50 000 harkis, Algerian volunteer soldiers who fought with the French forces. Amnesty was granted to the French military and the FLN in 962 and 966. France had signed the Geneva Conventions of 949 in 95: the Conventions’ obligations were not respected by the French forces in Algeria. The US in Vietnam: unwilling military justice

The 949 Geneva Conventions, ratiﬁed by the USA on 2 August 955, prescribe that Contracting Parties ‘undertake to enact any legislation necessary to provide eﬀective penal sanctions for persons committing , or ordering to be committed, any of the grave breaches’ of the Convention. Grave breaches involve: ‘wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suﬀering or serious injury to body or health, and extensive destruction and appropriation of property, not justiﬁed by military necessity and carried out unlawfully and wantonly’ if committed against persons or property protected by the Convention. Contracting Parties ‘shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts ...’ .23 All countries which have ratiﬁed the Conventions and their regular armies are under these obligations. Many ﬁnd such obligations diﬃcult to respect, including respected democracies. Grave breaches of the Conventions were committed during the American Vietnam War, which caused the death of more than 50 000 American soldiers and between two and three million Vietnamese. The US military showed an evident will to deny or hide grave breaches committed by their forces, and, when prosecutions and trials were held, to drop charges, to acquit those accused, to reduce sentences, or grant parole. The My Lai massacre was a cause célèbre. On 6 May 968, soldiers of the US Division’s th Infantry Brigade led by Lieutenant William Calley were on a mission in the hamlet of My Lai, Quang Ngai Province, to root out the communist 48th Viet Cong Battalion ﬁghters. The Viet Cong were not in the village, and instead more than 500 unarmed civilians,

The Weaknesses of National Justice

including elderly people, women and children, were killed in an unprovoked attack by the US troops. The massacre was ﬁnally stopped by the intervention of a US pilot who interposed his helicopter between the troops and the remaining Vietnamese civilians and coordinated the evacuation of the survivors. According to the oﬃcial Army report, submitted by Lt. General William Peers to General Westmoreland in March 970, the troops action included ‘... individual and group acts of murder, rape, sodomy, maiming, and assault on noncombatants and the mistreatment and killing detainees’. This report recommended that charges should be brought against 28 oﬃcers and two non-commissioned oﬃcers involved in the concealment of the massacre. The massacre was publicly revealed by investigative media reports in March 969. A full inquiry by the Inspector General started in April 969, and in June, Calley was identiﬁed as the oﬃcer present at My Lai. Charges were brought against him in September. Calley was found guilty of murder by a military court and sentenced to life imprisonment with hard labour on 3 March 97. Within three days, he was out of prison, pending appeal, on the personal instructions of President Richard Nixon. He spent the next three years under house arrest at Fort Benning in Georgia. On 20 August 97, his sentence was reduced to 20 years, and on 6 April 974, it was reduced to ten years. On 9 November 974, Calley was released on bond and he was paroled on 0 September 975, after serving only three and one half years of his sentence. Calley was the only one to be sentenced. Other oﬃcers were acquitted, or charges against them were dropped.24 A Special panel, the Working War Crimes Group, consisting of six military oﬃcers was created following the My Lai massacre to review war crime cases and to prevent cover-ups. According to four members, the Group never met. In May 200, former Senator Bob Kerrey admitted publicly his involvement in the killing of women and chidren on 25 February 969 in the small hamlet of Thanh Phong in South Vietnam.25 In October 2003, The Blade, a newspaper published in Toledo, Ohio (USA), revealed that an elite unit of American soldiers mutilated and killed hundreds of unarmed villagers in Vietnam over seven months in 967, and a US Army investigation was closed with no charges ﬁled. New York Times reporters were told by former soldiers that they had done what they were told to do and that their superiors knew what they were doing. According to Nicholas Turse, a researcher, these atrocities were merely the ‘tip of the iceberg in regard to US-perpetrated war crimes in Vietnam’. There only few prosecutions: besides the My Lai massacre of Vietnamese civilians in 968, only 36 cases involving possible war crimes in Vietnam went to army court-martial proceedings, with 20 convictions.26 Justice denied: the Guantanamo detainees

Since the beginning of US military operations in Afghanistan in October 200, launched in response to the terrorist attacks of  September 200, thousands

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of persons have been detained by anti-Taliban Afghan forces and by US armed forces. Most of the captured combatants are in the custody of the new Afghan authorities. The US military has been screening and interrogating detainees in Afghan custody in order to identify persons whom the US wants to prosecute or detain, or may have useful intelligence information about the whereabouts of Taliban or al-Qaeda leaders, or knowledge about the workings of the Qaeda network. By February 2002, 300 detainees of approximately thirty diﬀerent nationalities had been transferred to the US naval station at Guantanamo Bay, Cuba. The current ﬁgure is about 660, from more than 40 countries, including about 50 Saudis, 50 Pakistanis, three teenagers under age 6, including a 3-year old, several detainees aged over 70. Their names and nationalities have not been revealed. No charges have been levelled against them. The Guantanamo site has been used as a secret detention and interrogation center. Television programmes have shown the initial prisoners kneeling on the ground, manacled, wearing blue surgical masks, ear cups, and large blackened goggles – which the US asserted to be necessary security precautions during transport. The prisoners are kept in individual cells measuring .8 meter by 2.4 meters (6 feet by 8 feet), with concrete ﬂoors, chain-link fence walls, and corrugated metal roofs, kept fully lit at night. Responding to concerns from foreign governments and human rights NGOs that the detainees were not being treated in accordance with international standards, the US asserted that the detainees were not being shackled when in their cells and that they slept on the same foam mats as US soldiers when in the ﬁeld, received culturally appropriate food (three meals a day), water, were clothed in orange jump suits, were provided extensive medical treatment, were allowed to shower and exercise on a daily basis, and had access to a Muslim imam and had the opportunity to worship, correspondence material, and the means to send mail, the ability to receive packages of food and clothing, subject to security screening. They have been allowed to grow their beards.27 They are held in the cells for up to 24 hours a day. Photographs of prisoners being returned to their cells on stretchers after interrogation have been published. On 7 February 2002, President Bush stated, in part, that the US was treating and would continue to treat all the individuals detained at Guantanamo humanely and “to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 949”. He had determined that the Geneva Conventions applied to the Taliban detainees, but not to the al-Qaeda detainees. However, under the terms of that Convention, the Taliban detainees did not qualify as prisoners of war. “Therefore, neither the Taliban nor al-Qaeda detainees are entitled to prisoner of war status”.28 The President did not clarify the basis on which he had determined that the Taliban detainees did not qualify as prisoners of war. Other administration sources stated that it was because they failed to meet the requirements of Article 4(A)(2) of the Third Geneva Convention but did not explain why they did not meet the requirements of Article 4 (A)().29 US Secretary of Defense Donald

The Weaknesses of National Justice

Rumsfeld decided that ‘there isn’t any question in my mind ... but they are not, they would not rise to the standard of, a prisoner of war’.30 At a Conference in London on 20 February 2002, US Ambassador-at-Large for War Crimes Issues Pierre-Richard Prosper re-aﬃrmed this position, adding: ‘We will investigate, we will determine , which cases are the most important to prosecute and we will bring those who bear responsibility to justice’.3 On 20 January 2002, a group called the ‘Coalition of Clergy, Lawyers and Professors’ ﬁled a petition for a writ of habeas corpus in a federal district court in California regarding the detainees from Afghanistan being held at Guantanamo Bay, Cuba. The group alleged that because the detainees were being held incommunicado and had been denied access to legal counsel, the petition was being ﬁled on their behalf. The petitioners argued that the detainees were within the territorial jurisdiction of the US and thus entitled to a writ of habeas corpus. The court rejected the petition on 2 February 2002 on three grounds. First, the court found that the petitioners did not have standing to seek the petition, since they lacked a suﬃcient relationship with the detainees. Second, the court found that it lacked jurisdiction to issue the writ because the detainees were not within the territorial jurisdiction of the court: Guantanamo Bay is not within the sovereign territory of the US, but under Cuban sovereignty, in accordance with the lease agreement entered into by the US and Cuba in 903, extended in 934. Third, the court found that the petition could not be transferred to another court, since no federal district court anywhere in the United States has jurisdiction over the petition.32 The position of the International Committee of the Red Cross (ICRC)

As guardian of the Geneva Conventions, the ICRC is eminently qualiﬁed to assess whether States Parties to the Conventions abide by their commitment. ICRC delegates are allowed to visit prisoners of war – combatants captured during an international armed conﬂict – under Article 26 of the Third Convention of 949. The US has agreed to let ICRC teams visit Guantanamo as an extension of the work the organization had already begun in detention facilities in Afghanistan during and after the conﬂict in 200. The role of the ICRC is to regularly assess the facilities, speak with the internees, and to maintain an ongoing dialogue with the US authorities in order to oﬀer observations and make recommendations where appropriate. However, the responsibility for ensuring that the detainees are treated humanely lies with the US authorities. The ICRC’s position, stated in a document dated 6 December 2003, is that the question of the legal status of the persons held at Guantanamo Bay and the legal framework applicable to them remains unresolved.33 The ICRC’s main concern is that the US authorities have placed the Guantanamo internees beyond the law. That means that, after more than eighteen months of captivity, the internees still have no idea about their fate, and no means of recourse through any legal mechanism. The ICRC has observed a worrying deterioration in the psychological health of a large number of internees. The ICRC has recalled that

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the US has the right to legally prosecute any internee suspected of having committed war crimes or another criminal oﬀence punishable under US law. The ICRC has visited all the juveniles detained at Guantanamo. While the US authorities have made eﬀorts to provide special measures for some of the juveniles, the ICRC does not consider Guantanamo an appropriate place to detain juveniles. The ICRC’s dialogue with the US authorities on the conditions of internment and the treatment of internees remains frank and open. Nonetheless, serious divergences of opinion persist on a number of crucial issues. The ICRC has a conﬁdentiality policy, in order to preserve the exclusively humanitarian nature of its work. Following its visits to places of detention, its ﬁndings and observations are discussed conﬁdentially with the authorities in charge. Only in exceptional cases does the ICRC issues public statements about its ﬁndings and observations. The ICRC issued a Press Release on 28 May 2003 following the visit of its President, Jakob Kellenberger, on 27 May in Washington DC with US Secretary of State Colin Powell, National Security Adviser Condoleezza Rice and two other assistants. In relation to Guantanamo, the ICRC President asked the US authorities to institute due legal process and to make signiﬁcant changes for the more than 600 internees held there. On 9 October 2003, Christophe Girod, a senior ICRC oﬃcial based in Washington said that the detention of more than 600 people in Guantanamo was unacceptable because they were being held for open-ended terms without proper legal process. Human Rights groups reported that in 8 months, 2 detainees had made 32 suicide attempts and a number of detainees were being treated for mental depression – a direct result of the uncertainties of their situations.34 The Third Geneva Convention of 12 August 1949

This Convention, one of four Conventions adopted on 2 August 949, is ‘relative to the treatment of prisoners of war’. It sets out, inter alia, two cardinal principles. The ﬁrst is that a prisoner of war cannot be prosecuted and punished for the mere fact of having taken part in hostilities. The second is that prisoners of war must be given humane treatment from the time they fall into the power of the enemy until their ﬁnal release and repatriation. As stated by Naqvi,35 ‘Prisoner-of-war status is therefore of utmost importance for a captured person in the hands of a hostile power in terms both of legal status and of treatment. If a person is not given combatant status, he may be tried for having committed a belligerent act. Where this criminal oﬀence may be punished by capital punishment, the lack of prisoner-of-war status may be a matter of life or death’. According to Article 5 (2), ‘Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal’.

The Weaknesses of National Justice

To most external observers and specialists, the provisions of this Article should have been applied by the US, which has ratiﬁed the Convention on 2 August 955. The US authorities did not submit each individual case to a ‘competent tribunal’ but decided that they were not prisoners of war, but ‘enemy combatants’ a term without national or international legal legitimacy, thus depriving them of all legal protection as persons detained by the US military within the US legal system, or of international protection under the Third Convention as prisoners-of-war. The Inter-American Commission on Human Rights of the Organization of American States gave its opinion on 3 March 2002 to this organization in answer to a Request for Precautionary Measures in regard to the Detainees in Guantanamo Bay, Cuba.36 The Commission noted, inter alia, that ‘the information available suggests that the detainees remain entirely at the unfettered discretion of the United States’. It asked the US government to take the urgent measures necessary to have the legal status of the detainees determined by a competent tribunal. This request appears in line with the US own legislation. The 997 Army Regulation entitled ‘Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees’ requires that these ‘shall be treated as enemy prisoners of war until a legal status is ascertained by a competent authority’. The Regulation even goes further than Article 5(2) of the Third Convention in that it requires that a competent tribunal determines not only where doubt about Article 4 has arisen, but also where the person does not appear to be entitled to prisoner-ofwar status but asserts that he or she is entitled to this status. The Regulation requires that all the fundamental procedures of a fair trial be guaranteed.37 Military commissions

In response to the  September attacks, the US President issued an order on 3 November 200 that permits non-US citizens to be tried by military commissions. On 2 March 2002, Secretary of Defense Donald H. Rumsfeld outlined the structure of military commissions to be set up to try suspected international terrorists.38 First, the President must determine if an individual is subject to his Military Order, as the jurisdictional basis for prosecution. Only non-US citizens may be subject to the President Military Order, and if the President determines that there is a reason to believe that the individual is or was a member of al Qaeda, has engaged in, aided or abetted, or conspired to commit acts of international terrorism against the US, or knowingly harbored one or more of these individuals, and ‘it is in the interest of the United States that such individual be subject to this order’. Then, the Chief Prosecutor drafts charges on these individuals, which are approved by the Appointing Authority (currently Deputy Defense Secretary Paul Wolfowitz). The Appointing Authority then refers charges to a Military Commission and appoints its members. The proceedings of the Commission are held in secret and its records are not published.

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The detainees have no access to the writ of habeas corpus to determine whether their detention is justiﬁed. The US military will act as interrogators, prosecutors, defense counsels, judges, and when death sentences are imposed, as executioners. The US President, as Commander-in-chief, decides who is to be judged, guilt or innocence of the accused, and appropriate sentences. The Military Commission Procedures assert that these conditions will provide for ‘a full and fair trial’. On 4 November 200, Attorney General John Ashcroft and Vice President Dick Cheney said that terrorists who launched the September  attack and the people that helped them are war criminals who do not deserve the protections of the US Constitution. On 3 July 2003, President Bush designated the ﬁrst six captives to be tried before a military commission, which will probably meet at a specially constructed secure courtroom at the US naval base in Guantanamo Bay. The Military Commission procedures provide for assistance for preparing the accused defence by a Military Defense Counsel, and, if so decided by the accused, by civilian defense counsel under certain conditions. However, the National Association of Criminal Defense, which represents .000 US lawyers, advised its members against acting as civilian counsels at Guantanamo, in view of the ‘extraordinary restrictions on counsel’.39 In a background brieﬁng on military commissions held on 3 July 2003, a journalist asked whether it was possible that ‘somebody could go through a commission, be found not guilty, and then have them say well, congratulations, you’re not guilty but you are still an enemy combatant so back into wherever we’re holding you?’ The answer of a Senior Defense Oﬃcial was: ‘As a legal matter, they are two completely diﬀerent questions. They are not being held because of any criminal activity or any charges. They are being held because they are enemy combatants in an ongoing armed conﬂict. He added: ‘The war on terrorism is open ended’.40 The International Committee of the Red Cross has recalled that international humanitarian law stipulates that any proceedings against detainees should respect fundamental judicial guarantees, such as the presumption of innocence, the right to be tried by an impartial and independent tribunal, to right to competent legal counsel and the exclusion of any evidence obtained as a result of torture or other cruel, inhuman or degrading treatment.4 Releases from Guantanamo

On 25 November 2003, the US and Australian governments announced an agreement on the trial by a military commission of the two Australians held at Guantanamo Bay, the assurances given to be ‘case speciﬁc’.42 The agreement gave signiﬁcant concessions by the US towards due process – the prosecution would not seek the death penalty – if convicted, the accused would be transferred to Australia to serve any penal sentence in accordance with Australian and US law. Subject to any necessary security restrictions, military commissions

The Weaknesses of National Justice

will be open, the media present and appropriately cleared representatives of the Australian government will be allowed to observe the proceedings. The UK and France are also seeking information – what are the charges? – guarantees of a fair trial, and the exclusion of the dealth penalty, for their nationals: two British and six French detainees at the Guantanamo base.43 By the end of 2003, 88 detainees had been transferred out of Guantanamo. In November 2003, 20 were released – their identities and nationalities were not released – and 20 new suspects were brought to the base – from an undisclosed location. Authorized torture revealed

In May 2004, evidence surged in media, then in hearings before the US Congress, that the US occupation force in Iraq had committed torture in the Abu Ghraib prison, and, later that such torture had been authorized at the highest levels of the Bush Administration. The scandal was revealed to the US and to the world ﬁrst by CBS’s ‘60 Minutes’ television programme early May 2004, showing photographs of naked Iraqi prisoners humiliated by American soldiers. Press investigations44 revealed that in a report written in February 2004, and not meant for public release, Major General Antonio M. Taguba found that, between October and December 2003, there were numerous instances of ‘sadistic, blatant, and wanton criminal abuses’ at Abu Ghraib. This systematic and illegal abuse of prisoners was perpetrated by soldiers of the 372nd Military Police Company and by members of the American intelligence community. Excerpts of an ICRC report of February 200445 were published in the international media without the consent of the Committee, as its reports are strictly conﬁdential and only communicated to the responsible authorities. From 3 March 2003 to 24 November 2003, ICRC undertook 29 visits in 4 places of detention in Iraq. In numerous occasions, the ICRC expressed to the armed forces of the Coalition its concerns regarding the grievances observed during its visits and requested them to remedy the situation. The ICRC reminded them of their duties under international humanitarian law, which obliges states to safeguard the individual’s right to life, physical integrity and human dignity. In addition, the Geneva Conventions provide that prisoners of war and civilian internees must at all times be humanely treated and must be protected, particularly against acts of violence or intimidation and against insults and public curiosity. They are entitled in all circumstances to respect for their persons and their honour. Acts or omissions that violate these obligations incur international criminal liability for the individual perpetrator.46 The ICRC witnessed methods of physical and psychological coercion designed to gain confessions and extract information from the internees. They included:47 – hooding; – tight handcuﬃng with ﬂexi-cuﬀs;

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– beatings with hard objects; – being paraded naked outside cells; – being attached repeatedly over several days with handcuﬀs to the bars of their cell door in humiliating or uncomfortable positions; – exposure while hooded to loud noise or music, or to the sun. Other revelations showed that the Bush Administration, against the advice of the State Department, had authorized such practices and assured American ofﬁcials of their impunity in carrying them. A series of memorandums issued by the Justice Department in January 2002 provided arguments to keep US oﬃcials from being charged with war crimes for the way prisoners were detained and interrogated.48 The memorandum of 9 January gave legal arguments in support of the Administration assertion that the Geneva Conventions did not apply to detainees from the war in Afghanistan. On 25 January, Alberto Gonzales, the White House counsel, conﬁrmed the validity of this ﬁnding in a memorandum to President Bush, who was advised to declare the Taliban and Al Qaeda outside the coverage of the Geneva Conventions. This would keep American oﬃcials from being exposed to the federal War Crimes Act of 996 which carries a death penalty. In August, a memorandum from the Oﬃce of the Legal Counsel in the Justice Department provided a rationale for using torture to extract information from operatives. It provided complex deﬁnitions of torture that seemed devised to evade being charged with this oﬀence. A second argument was that the President ‘enjoys complete discretion in the exercise of his commander-in-chief authority’. As interrogations are a ‘core function of the commander-in-chief, ‘we will not read a criminal statute as infringing on the President’s ulstimate authority in these areas’. In March 2003, a memorandum by the Defence Department’s legal advisers drew on the January and August 2002 memorandums to declare that President Bush was not bound by either an international treaty prohibiting torture or by a federal anti-torture law because he had the authority as commander-in-chief to approve any technique needed to protect the nation’s security. In April 2003, a memorandum from Secretary of Defence Donald Rumsfeld to General James Hill outlined 24 permitted interrogation techniques to be used on Guantanamo detainees. A letter of 24 December to the ICRC contended that isolating some inmates at the Abu Ghraib prison for interrogation for their signiﬁcant intelligence value was a ‘military necessity’, and said that prisoners held as security risks could legally be treated diﬀerently from prisoners of war or ordinary criminals. The Supreme Court decisions of 28 June 2004

On 28 June 2004, the US Supreme Court gave three decisions which were steps towards restoring the rule of law in the USA, but not a total reversal of the government’s legal positions following the terrorist attacks of  September 200.

The Weaknesses of National Justice

The Supreme Court was cautious, as it referred to ‘this diﬃcult time in our Nation’s history’. It recalled that, one week after 9/, the US Congress had passed a resolution authorizing the President to ‘use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks ...’, the Authorization for Use of Military Force (AUMF).49 The ‘Guantanamo case’, adjudicated by a majority of 6 to 3, concerned the question as to whether US courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay, Naval Base in Cuba.50 Petitioners were two Australian citizens and 2 Kuwaiti citizens captured during the hostilities between the US and the Taliban. Since early 2002, the US military detained them together with approximately 640 other non-American. In 2002, the petitioners ﬁled actions in the US District Court for the district of Columbia challenging the legality of their detention in Guantanamo. They alleged that none of the petitioners had ever been a combatant against the US, or had ever engaged in any terrorist acts. They also alleged that none had been charged with any wrongdoing, permitted to consult with counsel, or provided access to the courts or any other tribunal. They ﬁled petitions for writ of habeas corpus, seeking release from custody, access to counsel, freedom from interrogations and other relief. The District Court dismissed the petitions for want of jurisdiction on the grounds of an opinion of the Supreme Court, that ‘aliens detained outside the sovereign territory of the United States [may not] invok[e] a petition for a writ of habeas corpus.’ Rejecting the government’s arguments, the Supreme Court aﬃrmed that, by the express terms of its agreements with Cuba, the US exercises ‘complete jurisdiction and control’ over the Guantanamo Bay Naval Base, and ‘may exercise such control permanently if it so chooses’. It aﬃrmed that ‘aliens held at the base, no less that American citizens, are entitled to invoke the federal courts’ authority’ under the authority granted by Congress to federal district courts to hear applications for habeas corpus by any person who claims to be held ‘in custody in violation of the Constitution or laws or treaties of the US’ (224).5 The Court recalled that US courts have traditionally been open to non-resident aliens. The Court held that 224 confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention in Guantanamo. The case was remanded to the District Court to consider in the ﬁrst instance the merits of the petitioners claims. In the ‘Hamdi case’ also adjudicated by a majority of 6-3, the Supreme Court considered the legality of the government’s detention of a US citizen on US soil as an ‘enemy combatant’.52 Hamdi resided in Afghanistan in 200 when he was detained and interrogated by the US military ﬁrst in Afghanistan, then transferred to Guantanamo in January 2002. In April 2002, he was transferred to a naval brig in Norfolk, Virginia, then in Charleston, South Carolina. The government contends that Hamdi is an ‘enemy combatant’, and that this status justiﬁes holding him in the US indeﬁnitely – without formal charges or proceedings

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– unless and until it makes a determination that access to counsel or further process is warranted. The Supreme Court concluded that the AUMF is explicit congressional authorization for the detention of individuals falling in the limited category of ‘enemy combatant’. While indeﬁnite detention for the purpose of interrogation is not authorized, the US may detain, for the duration of hostilities in Afghanistan, individuals legitimately determined to be Taliban combatants who engaged in an armed conﬂict against the US. All parties agreed that the writ of habeas corpus remains available to every individual detained with the US. The Court reaﬃrmed the fundamental nature of a citizen’s right to be free from involuntary conﬁnement by his own government without due process of law. The Supreme Court reject[ed] the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forego any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens ... it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge.

The case was remanded to a District Court with the following warning: [W]e anticipate that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factﬁnding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns’.

In the ‘Padilla case’ adjudicated by a majority of 5 to 4, the Supreme Court did not decide on the merits.53 On 8 May 2002, Jose Padilla ﬂew from Pakistan to Chicago O’Hare International Airport, where he was apprehended by federal agents. On 9 June, the President issued an order to Secretary of Defense Donald H. Rumsfeld designating Padilla an ‘enemy combatant’ and directing the Secretary to detain him in military custody. In support of this action, the President invoked his authority as ‘Commander in Chief of the US armed forces and the Congress Authorization for Use of Military Force Joint Resolution of 8 September 200’. Padilla was then taken into custody by Department of Defense oﬃcials and transported to the Consolidated Naval Brig in Charleston, South Carolina, where he has been held ever since. On  June, Padilla’s counsel ﬁled a habeas

The Weaknesses of National Justice

corpus petition in the Southern District, alleging that Padilla’s military detention violated the Fourth, the Fifth, and Sixth Amendments and the Suspension Clause of the US Constitution. The District Court accepted the government’s contention that the President has authority to detain as enemy combatants citizens captured on American soil during a time of war. The Court of Appeal rejected this decision, holding that the President lacks such authority. It granted the writ of habeas corpus and directed the Secretary to release Padilla from military custody within 30 days. The federal habeas corpus statute provides that the proper respondent to a habeas corpus petition is ‘the person who has custody over [the petitioner], a rule serving the important purpose of preventing forum shopping by habeas petitioners. The Supreme Court ruled that the District of South Carolina, not the Southern District of New York, was the disctrict court in which Padilla should have brought his habeas petition. The judgment of the Court of Appeals was reversed and the case remanded. In his dissenting opinion, Judge Stevens aﬃrmed that Padilla was entitled to a hearing on the justiﬁcation of his detention: At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activitiy is the hallmark of the Star Chamber . Access to counsel for the purpose of protecting the citizen from oﬃcial mistakes and mistreatment is the hallmark of due process. Executive detention of subversive citizens, like detention of enemy soldiers to keep them oﬀ the battleﬁeld, may sometimes be justiﬁed to prevent persons from launching or becoming missiles of destruction. It may not, however, be justiﬁed by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its ﬂag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny. Assessment

The Bush administration’s determination that the Guantanamo detainees are ‘illegal enemy combatants’ and therefore not entitled to the protection of the Third Geneva Convention was legally and politically untenable. The 903 agreement between Cuba and the US states: While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of occupation by the United States of said area under the terms of this agreement the United

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States shall exercise complete jurisdiction and control over and within said areas (Lease Agreement, art. III).

Insofar as the detainees are in the custody of the US government, the latter should have either recognized them as prisoners-of-war under the Third Convention, or if their status was in doubt, it should have been determined by a competent tribunal. The US has refused them the status of prisoners-of-war and has not submitted each individual case to a competent tribunal. The detainees are being kept at Guantanamo for an indeﬁnite period, subjected to secret interrogations – they have not been advised of the possible charges against them, they have not been judged nor sentenced by any tribunals. The military commissions are not charged with determining whether they have or not the status of prisoners-ofwar, they will try the detainees and decide on sanctions on the basis of US-made procedures, widely criticized as arbitrary and unfair. Even this judiciary process has not yet started, and was, by the end of 2003, targetted only at six detainees out of a total number of approximately 660, most of whom have been in custody since early 2002. Politically, the US government has been exposed to sharp criticisms from other governments, human rights organizations, and legal specialists. Lord Steyn, British Lord of Appeal in Ordinary, has labelled the Guantanamo aﬀair a ‘monstrous failure of justice’.54 The decisions of the Supreme Court of 28 June 2004 at last restored a modicum of legality to the US ‘war on terrorism’ in the delicate balance between personal liberties and national security. While it supported the US President’s authority to seize and hold alleged enemy combatants, the Supreme Court ruled that the Guantanamo detainees may challenge the legality of their detention in US courts, as well as a US citizen alleged to be an enemy combatant. In the three decisions, the cases will be submitted to federal district courts, with the Supreme Court’s warning that they ‘will pay proper heed both to the matters of national security ... and the constitutional limitations safeguarding essential liberties’. A Test Case: the Trial of Saddam Hussein On 3 December 2003, the US Fourth infantry Division took Saddam Hussein into custody. On 30 June 2004, he was formally handed over to the newly created Iraqi government although remaining factually in US custody. The day after, he was notiﬁed of the preliminary charges of the indictment, which will be brought against him before the Iraqi Special Tribunal (IST). These charges include using chemical weapons during the attach against the Kurds in Halabja, killing the Kurdish Barzani clan in 983, killing members of political parties in the last 30 years, the 986-988 ‘Anfal’ campaign of displacing Kurds, the suppression of the 99 uprisings by Kurds and Shiites and the 990 invasion of Kuwait. Saddam rejected the authority of the Tribunal and refused to sign the list of charges until he had a legal counsel.

The Weaknesses of National Justice

The IST was instituted by the Iraqi Governing Council on 0 December 2003.55 The Tribunal is to be an independent entity, not associated with any Iraqi government departments. It has juridiction ... over any Iraqi national or resident of Iraq accused of the crimes listed in Articles  to 4, committed since July 7, 968 and up until and including May , 2003,56 in the territory of the Republic of Iraq or elsewhere, including crimes committed in connection with Iraq’s wars against the Islamic Republic of Iran and the State of Kuwait ...

The Statute includes the three ‘core’ crimes of international law, genocide, crimes against humanity and war crimes, and violations of certain Iraqi laws. For the ﬁrst time since Nuremberg and Tokyo, and besides the yet ineﬀective ‘aggression’ provision in the Statute of the International Criminal Court, the crime of aggression has been included in the Statute of a war crimes tribunal, albeit in a limited way: Article 4 (c) includes the ‘abuse of position and the pursuit of policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country’. The Statute provides for due process rights to the accused, including the presumption of innocence. Sentences will be those that exist under Iraqi law, including the death penalty which has been restored by the Interim Government. The Tribunal will have one or more Trial Chambers, each with ﬁve judges, and an Appeals Chamber of nine judges. There will be up to 20 permanent investigative judges and up to 20 prosecutors. The authority to appoint judges and investigative judges rests with the Interim Government, which is required to consult on all appointments with a new Judicial Council. The IST is a national Iraqi tribunal but may include non-Iraqi judges to the Trial Chamber and the Appeals Chamber (Art. 4 (d)). It may also appoint nonIraqi advisers to assist the investigative judges and the prosecutors. It may therefore become, in part, internationalized, although its Statute does not require a set number or proportion of international judges. According to Tom Parker, the head of the Coalition Provisional Authority’s crimes against humanity investigations unit in Iraq, this is the ﬁrst time in history that a country will put its former leaders on trial under international criminal law in a locally-constituted court.57 For Parker, the creation of the Iraq tribunal, responding to the wish of Iraqis to see Saddam tried by Iraqis, also honoured the aspiration in Article 7 of the Rome Statute of giving primacy to national justice, an unexpected backhand compliment for the ‘ﬂawed’ International Criminal Court. In addition, by giving Iraqis this task, an experienced cadre of judges, lawyers and investigators steeped in international notions of due process will be created. While these arguments are valid, the Iraqi tribunal will face serious problems. First, in view of the long dictatorship of Saddam Hussein, existing Iraqi judges have mostly served under him and have no tradition of independence. Separate judicial assessments carried out on behalf of the Coalition Provisional Authority and the UN have concluded that the Iraqi judicial system is chronical-

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ly dysfunctional. The appointed judges, prosecutors and investigators will need substantial judicial support from foreign judges and other specialists in national and international criminal law. The issue of retroactivity will no doubt be raised, as in the international criminal tribunals: the IST Statute, promulgated in December 2003 includes ‘crimes’ dating back to July 968. The major problem is however the insecurity prevailing in Iraq and the military occupation by the Coalition led by the US. Will the Iraqis trust and respect a tribunal set up and functioning under the obvious inﬂuence, or authority of the occupying power? Can such a tribunal render fair justice in a country still in the midst of ﬁghting and uncertain as to its future? Members of the Tribunal and witnesses may fear for their own security. The French experience of trying Marshall Pétain and former Prime Minister Laval immediately after the liberation of France was not positive: their trials showed more revengeful spirit than fairness. Trying Saddam Hussein and his associates by an Iraqi tribunal is justiﬁed. However, there should be a signiﬁcant, open international input in its structure and operations, in order to avoid the charge of US-led victor’s justice. The creation of a mixed national-international tribunal, on the model of the Sierra Leone Special Court, would probably have been preferable on judiciary grounds. However, this was not the American solution.58 Conclusion Even if national courts should, as a rule, have primary jurisdiction on serious violations of humanitarian law or of human rights, their impartiality or competence may be challenged. The basic requirement of fair national justice is the establishment of an independent judiciary and the training of competent judicial personnel. This should be based on the rule of law, the protection of individual rights, the separation of powers between the executive, the legislative and the judiciary, and a system of checks and balances between the three constitutional powers, to which should be added the power of independent media. By deﬁnition, justice cannot be independent from the government in Communist countries, as the ideology and the ‘dictatorship of the proletariat’ prevail over bourgeois concerns of fair justice and all powers are concentrated in the ruling Communist Party. The Moscow Trials are examples of ‘directed’ communist justice, whereby even totally innocent indictees willingly confess to their imaginary crimes in the higher interest of the Party, for the success of the world Communist revolution. Communist idealism and ideology taken over by the cult of the personality, as for Stalin and Kim Il Jong, durably maintain populations under their yoke, prevent open criticism and investigations, and guarantee the impunity of their leaders, for as long as these regimes last. More generally, totalitarian and authoritarian states with rightist or leftist ideology integrate justice within the government apparatus, prevent or punish political opposition, inﬂuence judges’ verdicts in the desired direction, or eﬀectively hide crimes.

The Weaknesses of National Justice

Exiled leaders who have lost power over their population often enjoy the support and solidarity of their former peers, serving heads of state, as shown by the cases of Amin Dada and Mengistu. Western countries tend to close their eyes, or, as in the case of Haiti’s Baby Doc (Duvalier) oﬀer exile and maintenance. In some cases, the oﬀer of a comfortable exile is part of a deal to entice a despot to leave his country, with the added guarantee of impunity, as in the case of Charles Taylor. The obvious reticence and embarrassment with which the UK and Spain have treated the warrant issued by judge Garçon to arrest, indict and judge Pinochet are due to a large extent to diplomatic concerns: serving or retired heads of state, even if they are or were cruel tyrants, should be treated with the utmost care... Exiled criminal leaders should be sent back to their own country to be judged. Alternatively, they could be judged in other countries under the concept of universal jurisdiction, or by international tribunals. The military, in any political regime, but particularly in countries where they hold the real power, protect their own: they demand that amnesties be approved as a condition for allowing the transition of a country to democracy. If oﬃcers or soldiers are indicted by military or civilian courts, the military ensure by their inﬂuence that sentences are light, or not enforced. Authoritarian countries may be encouraged to move towards more democracy by open or discreet pressures from democratic countries, using political and/or economic means. Pressures may also be exercised by intergovernmental organizations such as the UN and regional organizations. The European Union and the Council of Europe insist on democratic credentials and practices as conditions for the admission of members. The European Court of Human Rights condemns and sanctions countries for violations of human rights and fundamental freedoms. The Organization for Security and Cooperation in Europe requires that its members respect their citizens’ human rights. Open criticisms and pressures by international NGOs such as Human Rights Watch, the International Federation of Human Rights Leagues, Amnesty International and national NGOs play an essential role in denouncing governments’ abuses, their violations of human rights and humanitarian treaties. The progress towards democracy of Central European and Latin American countries in the past decades is encouraging. In particular, democratic governments in Latin America have not only introduced respect for law, for political and civil rights and fundamental freedoms, but they have allowed past exactions to be revealed, amnesties to be repealed and perpetrators to be ﬁnally brought to justice. This has required a strong political will and moral courage on the part of new leaders less connected with the past and prepared to take risks in the interest of justice. By deﬁnition, democracies respect the rule of law. The examples of violations of human rights and humanitarian law by France and the USA are related to war and terrorism. The reasons given for these violations are the conduct of the enemy who have committed atrocities, and the need to obtain information in order to detect and prevent new terrorist attacks. However, humanitarian law has been developed for the speciﬁc purpose of ‘humanizing’ the conduct of war: those

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countries which have ratiﬁed the Geneva Conventions are obligated to respect their provisions. The international human rights legislation has been designed, at the initiative of Western democracies, in order to protect individual rights, including the right to life, the right to liberty and security of persons, the right to due process. The inhumane conduct of the enemy cannot be used as an excuse for violations of humanitarian and human rights law by democratic countries. Thanks to pressures by counter-powers, the judiciary, the media, public opinion, human rights groups and NGOs, such violations may, in time, be corrected. The reference to France and the USA is not intended as an overall condemnation of these countries: other democratic countries have committed exactions. However, France’s self-proclaimed role as the home country of human rights (‘la patrie des droits de l’homme’) and the USA, as the global beacon and promoter of democracy and human rights, deserve close scrutiny and frank assessment of their own past or present conduct. The present report is also based on the expectation that democratic countries ﬁnd within their own political and social systems, the resources necessary to acknowledge and correct faults, with the help of external censors. In conclusion, national justice is not generally incapable, incompetent or unwilling in all countries. However, when such failings are found in a particular country, where political and judiciary conditions would ensure the impunity of criminal leaders, the possible remedies are the extension of universal jurisdiction (Chapter 2) and/or international justice. Notes The Joinet report is in UN Doc. E/CN.4/Sub.2/997/20, 26 June 997, Principle 2. International Covenant on Civil and Political Rights, UN General Assembly Res. 2200 A (XXI) of 6 December 966. Art. 4 and 5. It entered into force on 23 March 976. 3 ‘Amnesty International report 2003’, pp. 50-. 4 The report ‘The Hidden Gulag: Exposing North Korea’s Prison Camps’ is available at . It was commissioned by the US Committee for Human Rights in North Korea, a private, non-partisan group based in Washington, DC. See the International Herald Tribune, 23 October 2003. 5 International Herald Tribune, 2 February 2004. 6 Orizio, R., Talk Of The Devil (Secker & Warburg, London, 2003), p. 46. Mengistu allegedly refused a US oﬀer to pay for his expenses while in Zimbabwe: p. 49. 7 See Beigbeder (999), pp.29-32 – BBC News, ‘Mengistu defends “Red Terror”’, 28 December 999, , accessed 8 November 2003 – Amnesty International report 2003, p. 02. 8 Orizio, op.cit., p. 29. See also, Le Monde, 7-8 August 2003, International Herald Tribune, 8 August 2003, and , accessed on 7 November 2003. 9 See Beigbeder (999), pp. 92-3. 0 , accessed 7 November 2003. 

2

The Weaknesses of National Justice  2 3 4 5 6 7 8 9 20

2 22 23 24

25 26 27

28 29

‘Justice Denied for East Timor’, December 2002, , accessed 3 November 2003. . Details may be found in Beigbeder (2002), Chapter 5. International Herald Tribune, 8 September 2003. ‘Chile: Supreme Court Removes Pinochet’s Immunity’, Human Rights Watch, Human Rights News, 26 August 2004. The Miami Herald,  July 200. Le Figaro, 30 June 2003. Le Monde, 29 July 2003. See for instance ‘Freedom in the world, political rights & civil liberties, 99-992’, Freedom House, 992, pp. 26-328. See ‘Mexico: Highest Court Authorizes Prosecution of “Dirty War” Cases’, 5 November 2003 , accessed on 24 November 2003. See details and references in Beigbeder (2002), pp. 8-9. Ibid. pp. 35-38. Art. 49 and 50 of First Geneva Convention 949, Art. 50 of Second Convention, Art. 29 of Third Convention and Art. 46 of Fourth Convention. See , , accessed 9 November 2003. Newsweek, 7 May 200. Reported by the International Herald Tribune, 20 October and 29 December 2003. Facts in this section are based on: “Decision Not to Regard Persons Detained in Afghanistan as POWs”, Edited by Sean D. Murphy, The American Journal of International Law, Vol. 96, 2002, pp. 475-482. The White House, Fact Sheet, ‘The Status of Detainees at Guantanamo, . This Article states: A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, which have fallen into the power of the enemy: ) Members of the armed forces of a Party to the conﬂict as well as members of militias or volunteer corps forming part of such armed forces. 2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conﬂict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulﬁl the following conditions: a) that of being commanded by a person responsible for his subordinates; b) that of having a distinctive sign recognizable at a distance; c) that of carrying arms openly; d) that of conducting their operations in accordance with the laws and customs of war.

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30 Rumsfeld’s statement of 27 January 2002 at
34 35

36 37

38

39 40

4 42

43 44 45

46 47 48 49

50 5 52 53

Jan2002/t0282002_t027sd2.html>. , 20 February 2002. See Murphy’s article in above Note 27, pp. 48-482. ‘Guantanamo Bay: Overview of the ICRC’s work for internees’, ICRC Operational update, 6 December 2003, . International Herald Tribune, -2 October 2003. See Yasmin Naqvi, ‘Doubtful prisoner-of-war status’ in International Review of the Red Cross, September 2002, Vol. 84, No. 847, pp. 57-595, with references to speciﬁc articles of the Convention. . Army Regulation 90-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and other Detainees, Headquarters Departments of the Army, the Navy, the Air Force, and the Marine Corps, Washington, DC,  October 997, Sections -6. US Department of Defense News Release, No. 40-02, 2 March 2002, ‘Secretary Rumsfeld announces military commission rules’ and ‘Department of Defense Fact Sheet, Military Commission Procedures’, . International Herald Tribune, 6 November 200, 4 July 2003. US Department of Defense News Transcript, ‘Background Brieﬁng on Military Commissions’, 3 July 2003, . See Note 3. US Department of Defense News Release, No. 892-0, 25 November 2003, ‘US and Australia announce agreements on Guantanamo detainees’, . Le Monde, 8 July and 9-0 November 2003. ‘Torture at Abu Ghraib’, by Seymour M. Hersh, The New Yorker, 0 May 2004. ‘Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation’ by Delegates of the ICRC, February 2004. 949 Geneva Conventions, Articles 3(), 3(2) and 4(). of GCIII and Article 27() of GCIV. ‘Torture and Truth’, Mark Danner, The New York Review of Books, 0 June 2004. International Herald Tribune, 22-23 May, 9 and 0 June 2004, The Economist, 9 June 2004. ‘Authorization for Use of Military Force’ (AUMF), 5 Stat.224. Quoted from the ‘Hamdi case’: ‘Hamdi et al, v. Rumsfeld, Secretary of Defense, et al.’, No. 03-6696, 28 June 2004. ‘Rasul et al v. Bush, President of the United States, et al’, No. 03-334, 28 June 2004. 28 U.S.C. paras 224(a), (c)(3). The ‘Hamdi case’, see Note 49. The ‘Padilla case’, ‘Rumsfeld, Secretary of Defense v. Padilla et al’, No. 03-027, 29 June 2004.

The Weaknesses of National Justice 54 International Herald Tribune, 27 November 2003.

See , and ‘Iraqi Special Tribunal: Questions and Answers’, in , accessed on 28 August 2004. 56 Saddam Hussein’s Ba’ath Party seized power on 7 July 968 – on  May 2003, President Bush declared that major combat operations in Iraq were over. 57 ‘Saddam’s trial creates a new legal model’, International Herald Tribune, 8 July 2004. 58 A detailed critique of the IST may be found in ‘The Statute of the Iraqi Special Tribunal for Crimes Against Humanity’, by Olaoluwa Olusanya, in German Law Journal, No. 7,  July 2004. 55

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CHAPTER 2

UNIVERSAL JURISDICTION

The doctrine of universal jurisdiction allows or requires national courts to investigate or prosecute persons for crimes committed outside the state’s territory which are not linked to that state by the nationality of the suspect, or of the victim, or by harm to the state’s national interests. It may also involve the right or the obligation to either judge or extradite the suspect to an able and willing state. It thus reinforces the ﬁght against impunity, with the aims of making alleged criminals accountable for their crimes and to give some satisfaction, or even reparations, to victims or their survivors. More generally, it should enhance the respect for a legal order at the international level, and, perhaps, act as an additional deterrent. In practice, as noted by Amnesty International, Despite the millions of acts of genocide, crimes against humanity, war crimes, cases of torture, extrajudicial executions and ‘disappearances’ committed since the end of the Second World War, only a handful of individuals have ever been brought to justice by national courts in the territories or jurisdictions where they occurred. Many of those responsible for these crimes have been able to travel outside their countries – either voluntarily on state business or pleasure trips or involuntarily after going into exile – with complete impunity. Indeed, in most cases when suspects are at liberty abroad one can presume, absent a convincing showing by the territorial state to the contrary, that the reason is that the territorial state has not only failed to fulﬁl its responsibilities under international law , but also that it is unlikely to do so. Suspects should be brought to justice in the states where they are found , extradited to a state able and willing to do so in a fair trial without the death penalty or other cruel, inhuman or degrading treatment or punishment or surrendered to an international court.

Traditionally, courts of one state would only exercise jurisdiction over persons who have committed a crime in their own territory (territorial jurisdiction).2 Gradually, international law has recognized that courts could exercise jurisdiction on crimes committed outside the territory by the state’s own nationals (active personality jurisdiction), over crimes committed against a state’s own nationals (passive personality jurisdiction), and over crimes committed against

Chapter 2

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the state’s essential security interests (protective principle jurisdiction). In addition, beginning with piracy committed on the high seas, international law began to recognize that courts of a state could exercise jurisdiction on behalf of the entire international community over certain grave crimes under international law which were matters of international concern. Evolving international law may allow, or in certain cases, require, states to exercise jurisdiction over persons suspected of certain grave crimes under international law, even if they took place in the territory of another state, involved suspects or victims who are not nationals of their state, or posed no direct threat to the state’s own security interests (universal jurisdiction). Implementation of the Principle Universal jurisdiction over war crimes appears to date to at least the 4th century. States began to exercise universal jurisdiction over piracy on the high seas as early as the 6th century. As noted by Hall,3 the Nuremberg Tribunal implicitly recognized in its judgment the existence of universal jurisdiction over crimes against peace, war crimes and crimes against humanity by stating that, in addition to the ground that the parties to the London Agreement of 8 August 945 could legislate for defeated Germany as occupying powers, in setting up the Tribunal they had ‘done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law’. The Nuremberg Tribunal was given jurisdiction over crimes that had no particular geographic location. By signing the various international instruments which created the Nuremberg Tribunal, the Four Powers – France, the UK, the USA and the USSR – sought to establish and impose jurisdiction within the territorial limits of another state over individuals who were neither nationals of any of the Four Powers states, for alleged crimes perpetrated not only against nationals of the Four Powers, that had been committed on the territory of one or more countries over which the Four Powers had not exercised control or occupation at the time in question. The jurisdiction of the Tribunal was therefore not based on territorial jurisdiction but on the basis of the universal nature of the crimes committed. While the Nuremberg and Tokyo Tribunals, as international tribunals, had an international jurisdiction limited by their Charter, and not universal jurisdiction which can only apply to national tribunals, their creation and judgments gave initial support to the notion and scope of universal jurisdiction. The many other trials by Allied military courts and commissions at the end of World War II of other persons who had served the Axis Powers for war crimes and crimes against humanity were based on universal jurisdiction or expressly recognized the doctrine as applicable to these crimes. Following the Nuremberg and Tokyo Tribunals, two trials, both concerned with war crimes and crimes against humanity committed by Nazi oﬃcials during World War II were based on universal jurisdiction. In the Eichmann case, in 96, the District Court of Jerusalem cited the absence of an international crimi-

Universal Jurisdiction

nal court as one rationale for exercising universal jurisdiction over war crimes and crimes against humanity: The abhorrent crimes deﬁned in this law are not crimes under Israel law alone. These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave oﬀences against the law of nations itself (delicta juris gentium). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, international law is, in the absence of an International Court, in need of the judicial and legislative organs of every country to give eﬀect to its criminal interdictions and to bring the criminals to trial.4

In the Demjanjuk case, in 985 the US Court of Appeals for the Sixth Circuit also made reference to the universal jurisdiction principle: ‘The universality principle is based on the assumption that some crimes are so universally condemned that the perpetrators are the enemies of all people. Therefore any nation which has custody of the perpetrators may punish them according to its law applicable to such oﬀences’.5 The creation and work of the International Criminal Tribunals for the Former Yugoslavia in 993 and for Rwanda in 994 acted as a catalyst for national prosecutors and judges to investigate and prosecute persons suspected of war crimes, crimes against humanity and genocide in these two regions6 (see Chapters 3 and 4). On 7 July 998, a diplomatic conference in Rome (Italy) adopted the Statute of the International Criminal Court. The Statute entered into force on  July 2002. Despite widespread support at the diplomatic conference for giving the new Court universal jurisdiction, as part of a political compromise designed to make the Court more acceptable to the USA, the Rome Statute did not provide the Court with such jurisdiction or expressly require states parties to exercise such jurisdiction. However, in paragraphs 4-6 of the Preamble, states parties aﬃrm that ‘the most serious crimes of concern to the international community as a whole must not go unpunished and that their eﬀective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’, determine ‘to put an end to impunity for the perpetrators of such crimes’, and recall that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. The arrest of the former President of Chile, Augusto Pinochet Ugarte, on 6 October 998 in London in response to an extradition request seeking his trial in Spain based on universal jurisdiction for genocide, torture, murder and hostagetaking in Chile, Spain and other countries was a signiﬁcant breakthrough in the use of universal jurisdiction, even though the UK allowed Pinochet to return to Chile on medical grounds. For the ﬁrst time, an investigation and an extradition request were based on universal jurisdiction for crimes not committed during the World War II, concerning two countries which were not within the jurisdiction of an existing international criminal court, and Chile, where the alleged crimes took place.

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Crimes under International Law Subject to Universal Jurisdiction Customary or conventional international law permits, or in certain cases, requires states to exercise universal jurisdiction over war crimes, crimes against humanity, genocides and torture. War crimes

A ﬁrst area where universal jurisdiction may be claimed is that of war crimes. Traditionally, war crimes refer to crimes in international armed conﬂicts, and more precisely to ‘grave breaches’ of the four Geneva Conventions of 949 and their ﬁrst Additional Protocol of 977. Each of the widely ratiﬁed four Geneva Conventions prescribe that ‘each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case’. Article 88 of Protocol I prescribes that ‘[w]hen circumstances permit, the High Contracting Parties shall cooperate in the matter of extradition. They shall give due consideration to the request of the State in whose territory the alleged oﬀence has occurred’.7 Article 88 of the 977 Protocol I to these Conventions, which applies to international armed conﬂicts, provides that the High Contracting Parties ‘[s]hall aﬀord one another the greatest measure of assistance in connexion with criminal proceedings brought in respect of grave breaches of the Conventions or of this Protocol’. It also requires them to cooperate in the matter of extradition. There are however no explicit provisions in the Conventions nor in the 977 Protocol II for international criminal responsibility for violations of international humanitarian law in non-international armed conﬂicts. However, according to Hall,8 there has been substantial state practice over the past decade, including legislation and prosecutions, demonstrating not only that there is international criminal responsibility for violations of common Article 3 to the Conventions and of Protocol II and certain other conduct prohibited in non-international armed conﬂict, as recognized in the Rome Statute, but also that national courts may exercise universal jurisdiction over persons responsible for such violations. If states do not do so, they should extradite the suspects to a state able and willing to do so, or surrender them to an international criminal court with jurisdiction over the crimes and suspects. Grave breaches include wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suﬀering or serious injury to body or health, and extensive destruction and appropriation of property, not justiﬁed by military necessity and carried out unlawfully and wantonly.9 By the end of 2003, out of 93 possible ratiﬁers, the Geneva Conventions had 9 ratiﬁcations, the ﬁrst protocol, 60 and the second protocol, 54.

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Crimes against humanity

Crimes against humanity were ﬁrst listed and deﬁned as one of the crimes on which the Nuremberg International Military Tribunal had jurisdiction by the August 945 Nuremberg Charter, annexed to the London Agreement (Art. 6 (c)). They are also found in the Statute of the International Criminal Tribunal for the Former Yugoslavia (Art. 5), the Statute of the International Criminal Tribunal for Rwanda (Art. 2), and in the Statute of the Special Court of Sierra Leone (Art. 2). They have been further deﬁned in Article 7 of the Rome Statute as follows: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f ) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identiﬁable group or collectivity on political, racial, national, ethnic, cultural, religious, gender (...); (i) Enforced disppearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing grave suffering, or serious injury to body or to mental or physical health. There is no speciﬁc Convention on crimes against humanity: the Geneva Conventions refer in part to ‘grave breaches’ which include some of the deﬁned crimes against humanity, and speciﬁc Conventions deal with the crimes of genocide, apartheid and torture. The 968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity refers to the deﬁnition of crimes against humanity in the Nuremberg Charter and prescribes that no statutory limitation ‘shall apply’ to this crime and that domestic legislation should make possible the extradition of suspected individuals. The Convention does not set a rule authorizing the exercise of universal jurisdiction. In its Judgment of 4 February 2002, Arrest Warrant of  April 2000 (Democratic Republic of the Congo v. Belgium) the International Court of Justice did not pronounce itself on the subject of universal jurisdiction. However, separate opinions of the judges showed opposite views on the issue. Judge Guillaume, President, opined that under classic international law, a state normally has jurisdiction over an oﬀence committed abroad only if the oﬀender, or at the very least the victim, has the nationality of that state, or if the crime threatens its internal or external security. Additionally, states may exercise jurisdiction in cases of piracy and in the situation of subsidiary universal jurisdiction provided for by various conventions if the oﬀender is present on their territory. However, apart from these cases, Judge Guillaume, with the support of three other judges, af-

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ﬁrmed that international law does not accept universal jurisdiction, still less does it accept universal jurisdiction in absentia. In their joint separate opinion, Judges Wiggins, Kooijmans and Buergenthal asked whether states are entitled to exercise universal jurisdiction over persons accused of serious international crimes which have no connection with the forum state and are not present in the state’s territory. Although they ﬁnd no established practice indicating the exercise of such jurisdiction, neither do they ﬁnd evidence of an opinio juris that deems it illegal. Moreover, the growing number of multilateral treaties for the punishment of serious international crimes tend to be drafted with great care so as not to preclude the exercise of universal jurisdiction by national courts in these types of cases. Thus, for these judges, while there may be no general rule speciﬁcally authorizing the right to exercise universal jurisdiction, the absence of a prohibitive rule and the growing international consensus on the need to punish crimes regarded as most heinous by the international community, indicate that the warrant for the arrest of Mr. Yerodia0 did not as such violate international law. In his separate opinion, Judge Rezek noted the importance of restraint in the exercise of criminal jurisdiction by domestic courts; a restraint in line with the notion of a decentralized international community, founded on the principle of the equality of its members and necessarily requiring mutual co-ordination. According to Hall,2 as of September 200, almost 00 states were known to have legislation that would permit their courts to exercise universal jurisdiction over at least some conduct that could amount to crimes against humanity in time of peace. However, prosecutors have only opened investigations or commenced prosecutions in a dozen of these states since the Second World War based on universal jurisdiction over conduct amounting to crimes against humanity, or have arrested persons at the request of states seeking to exercise such jurisdiction, including: Austria, Belgium, Canada, Germany, Israel, Mexico, Netherlands, Paraguay, Senegal, Spain, the UK and the USA. Genocide

The 948 Convention on the Prevention and Punishment of the Crime of Genocide identiﬁes genocide as a crime under international law which the Contracting Parties undertake to prevent and to punish. Genocide is meant as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inﬂicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent birth within the group; (e) Forcibly transferring children of the group to another group.

Universal Jurisdiction

Persons committing the crime of genocide ‘shall be punished, whether they are constitutionally responsible rulers, public oﬃcials or private individuals’. Art. VI of the Convention limits jurisdiction to a ‘competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’. Art. VII states that Contracting Parties pledge themselves to grant extradition in accordance with their laws and treaties in force. Even though Contracting Parties should ‘undertake to prevent and to punish’ the crime of genocide, and even though Article VII provides for extradition, Article VI only grants territorial jurisdiction, or jurisdiction of an international penal tribunal. During the drafting of the Convention, a few states asked for the insertion of a provision according to which the state would be bound to extradite the criminals and would judge them only if the extradition had not been sought or had not been granted.3 This proposal was not accepted, showing that states were determined to limit repression to their territorial jurisdiction. The International Court of Justice, in its Judgment of  July 996 on the Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia, Preliminary Objections (paragraph 3), gave a broad interpretation of the jurisdiction applicable to the crime of genocide: Lastly, as to the territorial problems linked to the application of the Convention, the Court would point out that the only provision relevant to this, Article VI, merely provides for persons accused of one of the acts prohibited by the Convention to “be tried by a competent tribunal of the State in the territory of which the act was committed...”. It would also recall its understanding of the object and purpose of the Convention, as set out in its Opinion of 28 May 95, cited above: “The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as ‘a crime under international law’ involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (I) of the General Assembly, December th 946). The ﬁrst consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required ‘in order to liberate mankind from such an odious scourge’ (Preamble to the Convention).” (I.C.J. Reports 95, p. 23). It follows that the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention.

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Accordingly, every state may exercise universal jurisdiction over persons suspected of genocide. There is however no general support for the view that states are also required to exercise such jurisdiction over persons suspected of genocide found in territory under their control, to extradite the person to a state able and willing to do so or surrender the suspects to an international criminal court. As of the end of 2003, out of 93 possible ratiﬁers, 33 states had ratiﬁed the Genocide Convention, two had signed but not yet ratiﬁed the Convention. According to Hall,4 approximately 70 states have legislation that would permit their courts to exercise jurisdiction over at least some of the acts constituting genocide. A few national courts have exercised universal jurisdiction over persons suspected of genocide or authorized their extradition to other states able and willing to do so, including: Germany, Israel, Mexico, Spain. Apartheid

The 973 International Convention on the Suppression and Punishment of the Crime of Apartheid declared that apartheid is a crime against humanity. As a considerable innovation, it introduced the concept of universal jurisdiction in the implementation of the Convention: it required States Parties ‘to adopt legislative, judicial and administrative measures to prosecute, bring to trial and punish in accordance with their jurisdiction persons responsible for, or accused of, the acts deﬁned in article II of the present Convention, whether or not such persons reside in the territory of the State in which the acts are committed or are nationals of that State or of some other State or are stateless persons’ (Art. IV (b)). By the end of 2003, the Apartheid Convention had only 0 ratiﬁcations out of 93 possible states. No democratic state in Western Europe and North America had signed the Convention, considered to be a Third World eﬀort overly focused on ﬁghting the South African government of the time. Torture

The 984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires States Parties to exercise universal jurisdiction over persons in their territory who are suspected of committing torture or to extradite them to a state able and willing to do so: aut dedere, aut judicare: ‘Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such oﬀences in cases where the alleged oﬀender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article’ (Article 5.2). ‘The State Party in the territory under whose jurisdiction a person is alleged to have committed any oﬀence referred to in article 4 is found shall in the cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution (Art. 7,). Article 8. requires torture oﬀences to be included as extraditable oﬀences in any extradition

Universal Jurisdiction

treaty existing between States Parties. They undertake to include such oﬀences in every extradition treaty to be concluded between them. The second judgment of the British Lords in the Pinochet case was based on the Torture Convention. The Lords held that once the UK and Chile had ratiﬁed the Convention, Pinochet could not claim immunity for torture. A British magistrate then determined that Pinochet could be extradited to Spain (which had also ratiﬁed the Convention) on charges of torture and conspiracy to commit torture. As Lord Browne-Wilkinson, the senior Judge in the Pinochet case, said: ‘The purpose of the Convention was to introduce the principle aut dedere, aut punire – either you extradite or you punish.5 Out of 93 possible ratiﬁers, at the end of 2003, the Torture Convention had 34 ratiﬁcations. Universal Jurisdiction at the National Level According to Hawkins,6 09 states have implemented some form of universal jurisdiction legislation for speciﬁc human rights abuses. Of these 09, most states have limited universal jurisdiction to grave breaches of the Geneva Conventions and to torture. 72 states have adopted the most common legislative model, i.e. to identify speciﬁc crimes by name that are subject to universal jurisdiction. They include Canada (a wide range of crimes), France, Italy and the USA (torture), Germany and Russia (genocide), Great Britain (grave breaches of the Geneva Conventions and torture). The next most common model is to allow universal jurisdiction when speciﬁcally authorized or required by international treaty: this model has been adopted by 44 states, including France, Germany, Italy, Japan and Russia. Only thirteen states allow universal jurisdiction for any international crime. Based on an exhaustive search of the International Committee of the Red Cross and Amnesty International databases complemented by secondary sources, Hawkins found that cases have been prosecuted in fourteen countries.7 In twelve of those, courts have upheld universal jurisdiction as long as they could rely on domestic legislation or international conventions, or both. The ﬁrst cases, involving alleged Nazi war criminals, occurred in the late 980s, others, not connected with World War II, started in the mid-990s. Selected country case studies follow. Belgium

The Belgian law of 6 June 993 gave jurisdiction to Belgian courts to hear complaints over grave breaches to the 949 Geneva Conventions and to the 977 Protocols, independently of the place where they were committed. The law of 0 February 999 extended jurisdiction to grave breaches of international humanitarian law. Genocide and crimes against humanity, committed in time of peace or war, were considered as crimes under international law.

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On 8 June 200, a Court in Brussels condemned four Rwandans to prison terms for crimes committed in Rwanda in 994, by reference to the 993 law. In June 200, two complaints were ﬁled against Ariel Sharon in Brussels. On 23 June, the Public Prosecutor’s Oﬃce in Brussels declared the second complaint for acts of genocide and crimes against humanity allegedly committed in the Sabra and Shatila camps, to be receivable. Other complaints for crimes against humanity or genocide, were ﬁled in 200 and 2002 against Laurent Gbagbo, the Ivory Coast President, his predecessor Robert Gueï and his Minister of Interior, Saddam Hussein, the President of Iraq, Fidel Castro, Cuba’s President, Palestine’s Yasser Arafat, Iran’s President Ali Akbar Hashemi Rafsanjani – and against former Presidents Hissene Habré (Chad), Augusto Pinochet (Chile) and Maaouya Ould Sid’Ahmed Taya (Mauritania). On 2 February 2003, the Court of Cassation quashed the 26 June 2002 ruling of the Appeal Court’s Accusation Chamber in the Sabra and Shatila case. The Court held that a prime minister beneﬁts from immunity as long as he is in oﬃce and thus cannot be prosecuted during that time, while persons not beneﬁting from immunity can be prosecuted, wherever they may be. In March and June 2003, complaints were brought against US political and military leaders for their role in the 99 and 2003 Iraq and Afghanistan wars, including President George W. Bush, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell, General Tommy Franks and the British Prime Minister Tony Blair. On 3 May 2003, Rumsfeld wondered whether Belgium could continue to assume its role as host of NATO if its legislative arsenal allowed, among others, the prosecution of US oﬃcials. He said that, as long as this legislation was not rescinded, he would oppose any new NATO construction in Belgium: the possibility of a transfer of NATO headquarters from Belgium had even been considered. US pressures and threats, Israeli protests, a lack of European solidarity and support and the unmanageable ﬂood of lawsuits made the Belgian government and Parliament repeal the 993 and 999 laws. On  August 2003, the Belgian Parliament approved a new law which severely restricted the Belgian courts’ jurisdiction.8 Courts would henceforth only have jurisdiction over international crimes if the accused is Belgian or has his primary residence in Belgium, if the victim is Belgian or has lived in Belgium for at least three years at the time the crimes were committed; or if Belgium is required by treaty to exercise jurisdiction over the case. The new law has also reduced the victims’ ability to obtain direct access to the court – unless the accused is Belgian or has his primary residence in Belgium, the decision whether or not to proceed with any complaint now rests entirely with the federal prosecutor. Complainants will have to show a direct link between themselves and the alleged crimes. However, the federal prosecutor may initiate proceedings relating to a case that has no link with Belgium if so required by an international treaty or customary law. Where the crimes took place outside Belgium and the accused are not Belgian, the government may refer cases to the International Criminal Court, or to

Universal Jurisdiction

the courts of a country that accepts the ICC jurisdiction, or even to a country that has not accepted this jurisdiction, provided it has a fair judicial and democratic system. Legal immunity of foreign leaders, diplomats or members of armed forces invited to Belgium will be respected. All current cases will be annulled except those concerning the Rwandan genocide, the killing of two priests in Guatemala, and the complaints ﬁled against ex-Chadian dictator Hissene Habré. For six human rights groups,9 the repeal of the Belgian landmark ‘universal jurisdiction’ statute was a step backwards in the global ﬁght against the worst atrocities. Belgium had now adopted a law similar to or more restrictive that most European countries. Spain

Article 23.4 of the Organic Law on Judiciary Power (336), promulgated on  July 985, gives jurisdiction to Spanish courts to review facts committed by Spaniards or foreigners outside the Spanish territory, liable, according to Spanish criminal law, to constitute such crimes as, among others, genocide, terrorism, piracy and any other oﬀence, which in accordance with international treaties or conventions, must be prosecuted in Spain. This law thus introduced the principle of universal jurisdiction for the crime of genocide. The arrest warrant against General Pinochet initiated in October 998 by Spanish judge Baltasar Garzon20 requested the UK authorities to hold him in London prior to extradition to Madrid on the basis of the 985 law. It was based on charges of genocide, torture and kidnapping in connection with the death or disappearance of 397 people in the period 973-990, and more speciﬁcally the murder of Spanish citizens in Chile.2 Many other complaints were submitted to Spanish courts against Fidel Castro and other Cuban leaders, against political and military leaders in Guatemala, against Hassan II, Alberto Fujimori, Jorge Videla and others. However, the Spanish government and prosecutors objected to the hearing of such complaints in Spanish courts, on the legal grounds that alleged criminals should be judged in their own countries, but also for diplomatic (political and economic) reasons: Spain wants to maintain good relations with Latin American countries. Building on the Pinochet precedent, on 2 November 999, Garzon issued arrest warrants for 98 Argentine oﬃcers for genocide and torture of Spanish nationals during the 976-983 military dictatorship when as many as 30 000 people died. Among the oﬃcers indicted were former President General Jorge Videla and navy chief Admiral Emilio Massera. President Menem complained that any talk of extradition was ‘totally out of the question and out of place. This is an absurd intervention in the internal aﬀairs of a sovereign country’. The Spanish Foreign Minister Abel Matute expressed the hope that Garzon would not pursue a request for extradition and the Spanish Public Prosecutor argued that Spanish courts did not have jurisdiction.22 On 24 August 2000, Ricardo Miguel Cavallo, one of the 98 oﬃcers indicted in 999, was arrested at Mexico’s Cancun airport, not for human rights viola-

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tions, but on corruption charges. Garzon then called for his extradition to Spain, under a 980 Spanish-Mexican treaty, on charges of torture, disappearances and executions while he worked at the Naval Mechanics School in Buenos Aires from 976 to early 979. The Argentine President Fernando De la Rua demanded that the Mexican government reject the extradition request: ‘The government of Argentina insists on the principle of territoriality in the application of criminal law’. Kirchner later reversed De la Rua’s opposition. On 0 June 2003, the Mexican Supreme Court ordered the extradition of Cavallo to Spain. He was jailed without bail in Madrid pending his trial. According to José Miguel Vivanco, executive director of Human Rights Watch, the Cavallo case ‘represents a real victory for international justice. Mexico will become the ﬁrst Latin-American country to extradite someone for gross human rights violation under the principle of universal jurisdiction’. However, Spanish prosecutors argued that Spain does not have jurisdiction over crimes committed in Argentina and appealed the decision to jail Cavallo to a higher court. Garzon’s request to the British authorities, in April 2002 for permission to question Dr Henry Kissinger about his knowledge of the Condor Plan on his visit to London, was rejected. On 24 July 2003, Garzon again sent arrest warrants for the extradition to Spain of 39 Argentine military oﬃcers and one civilian. They were arrested in Buenos Aires. He demanded that they pay nearly $3 billion in compensation to their victims. However, on 29 August, the Spanish government decided not to transmit the extradition requests to Argentina. Spain’s deputy prime minister Mariano Rajoy said: ‘We believe in the ﬁrm commitment of the Argentine government to pursue the prosecution of these people as the President has said numerous times’. The detainees were set free from jail on 26 September 2003. Among them was Captain Alfredo Astiz wanted in France where he had been condemned in absentia for the murder ot two French nuns. On 2 September 2003, the Federal Court of Buenos Aires ordered trials to be reopened into crimes committed in the Navy Mechanics School.23 Canada

The Criminal Code was modiﬁed on 28 August 987 with limited jurisdiction assigned to Canadian courts for war crimes and crimes against humanity committed abroad, under the following conditions: the alleged criminal has Canadian nationality or is employed by the Canadian government, or is a national of a state in conﬂict with Canada, or the victim is Canadian or a national of a country allied to Canada in an armed conﬂict. Jurisdiction is also granted if the alleged criminal was or is in Canada. The Crimes Against Humanity and War Crimes Act was promulgated on 29 June 2000 in implementation of the Rome Statute of the International Criminal Court. The Act lists genocide, crimes against humanity and war crimes as indict-

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able oﬀences and authorizes prosecution under the same conditions as for the 987 Criminal Code. USA

The Alien Tort Claims Act of 789 grants jurisdiction to US Federal Courts over ‘any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’. This Act, initially conceived to ﬁght against piracy, has been used in recent years by foreign victims of grave human rights abuses committed outside the USA to sue the perpetrators in US courts. The US Courts’ jurisdiction under this Act is limited to adjudicating civil liability for human rights violations (especially torture). The Courts have civil, not criminal, competence: they do not sanction the perpetrators except by deciding on restoration to the victims, limited to ﬁnancial compensation. The Restatement (Third) of the Foreign Relations Law of the United States of 987 provides for ‘Universal Jurisdiction to Deﬁne and Punish Certain Oﬀenses ... recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism’ paragraph 404). The Genocide Convention Implementation Act of 988 however limits jurisdiction to oﬀences committed within the United States if the oﬀender is a US national. In 99, the US Congress passed the Torture Victim Prevention Act which gives jurisdiction to US courts over suits by individuals alleging torture or extra judicial killing ‘under actual or apparent authority, or colour of law of any foreign nation’. The Act extended its remedy not only to aliens but to any ‘individual’, thus covering US citizens. It explicitly recognized that the law of nations is incorporated into the law of the US and that a violation of the international law of human rights, with regard to torture, is ipso facto a violation of US domestic law. The War Crimes Act of 996 (H.R. 3680) authorizes the prosecution of war criminals if they are found in or extradited to the USA. However, it applies only to US nationals and members of the US Armed Forces who are perpetrators or victims of war crimes. In the Filartiga v. Pena-Irala case of 979/980 submitted under the Alien Tort Claim Act (ATCA) by a Paraguayan national living in New York who won her case against a former police oﬃcer who had tortured and murdered her brother in her country, the District Court held that deliberate torture perpetrated under the colour of oﬃcial authority violates universally accepted norms of international human rights law, and that such a violation of international law constitutes a violation of the domestic law of the US, giving rise to a claim under ATCA whenever the perpetrator is properly served within the US borders. The Torture Victim Prevention Act of 99 ratiﬁed the holding in Filartiga on the jurisdiction of US courts for torture and extra judicial killing.24 Since the Filartiga decision, US Courts have held that ATCA permits victims, or their relatives, to seek damages for acts that violate international law. In 2003, a federal judge in Washington, D.C., ordered Iraq to pay nearly $ billion

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to US soldiers captured and tortured in the 99 Iraq war, and another ordered Iran to pay $33 million to the children of a US woman killed in a 997 suicide bombing at a Jerusalem market. On 5 October 2003, in the ﬁrst verdict rendered by a US jury for crimes against humanity, a federal jury in Miami awarded $4 million in damages against a Chilean former army oﬃcer, who was held liable for the torture and killing of Winston Cabello, a Chilean economist. The crime was committed one month after the September 973 military coup that brought General Augusto Pinochet to power.25 By 2003, 9 perpetrators had been sued successfully under ATCA. Among them, one case involved US District Courts and, separately, the International Criminal Tribunals for the Former Yugoslavia (ICTY), and another one, US District Courts and, separately, the International Criminal Tribunal for Rwanda (ICTR): – Kadic v. Karadzic was ﬁled in March 993 by women survivors.They claimed rape as genocide, rape as a war crime, rape as a crime against humanity, and rape as a form of torture and other injuries committed in Bosnian Serbia. It was a civil claim, seeking declamatory relief (acknowledgement that what happened to them violated international law), an injunction against the genocide (requiring Karadzic to order it to end), and substantial damages for the human atrocities committed as a result of his policy of genocidal aggression. Karadzic contested all claims, but, following a successful appeal and the US Supreme Court’s decision to leave the appeal decision standing by declining to accept review, he wrote a letter to the judge saying that he would no longer ﬁght the claims at the trial level.26 He is still in default. No monetary award has yet been ordered, nor paid. Karadzic, the former President of the Bosnian Serb administration in Pale, was indicted by the ICTY on 24 July 995 and charged with genocide, crimes against humanity and crimes against the civilian population and places of worship. He is in hiding: he has not yet been arrested nor transferred to The Hague. – Louise Mushikiwabo, et al. V. Jean Bosco Barayagwiza, case judged by a US District Judge on 9 April 996.27 In this case, the plaintiﬀs sought compensatory and punitive damages under ATCA and the Torture Victim Protection Act of 99. The evidence showed that the defendant, as a leader of the Rwandan Hutu Coalition pour la Défense de la République, played an instrumental role in the torture and massacre of thousands of Rwanda’ Tutsi minority, as well as moderate members of the Hutu majority. The judge, although deploring that ‘a monetary judgment is all the Court can award the plaintiﬀs’, awarded from $0 to 35 million, as pain and suﬀering damages and punitive damages, to each of the ﬁve applicants. On 3 December 2003, the ICTR condemned Barayagwiza to 35 years in jail for genocide, direct and public incitement to commit genocide, and crimes against humanity (extermination and persecution).28

Universal Jurisdiction

These cases show separate and diﬀerent avenues towards seeking justice for serious violations of international humanitarian law. The ICTY and the ICTR are international criminal courts whose competence is to prosecute those persons responsible for serious violations of international humanitarian law and to impose sanctions and penalties on those convicted of such violations. The Statutes of both the ICTY and the ICTR provide a measure of reparation to victims: ‘In addition to imprisonment, the Trial Chambers may order the return of any property acquired by criminal conduct, including by means of duress, to their rightful owners’.29 No ﬁnancial compensation is provided for by the Statutes. Jail sanctions ordered by the ICTY and the ICTR on detainees are eﬀectively carried out. The US Courts judging under the Alien Tort Claims Act are civil courts only empowered to decide on monetary compensation to victims. Amounts in some cases are considerable, but may not by eﬀectively implemented. Some victims have found such recourse, even if limited and symbolic, very gratifying.30 Under ATCA, victims are enabled to sue their tormentors, or families of victims can sue killers, but only the Prosecutor can initiate investigations and prosecutions in the international criminal tribunals. On 29 June 2004, in the Sosa v. Alvarez-Machain et al. case, the US Supreme Court reversed the award of $25 000 in damages granted by a District Court and conﬁrmed by the Ninth US Circuit Court of Appeals in San Francisco. Dr Humberto Alvarez-Machain had been abducted in 990 in Mexico by a group of Mexican men at the direction of the US Drug Enforcement Administration (DEA). He faced charges that he participated in the torture and murder of a DEA agent in a federal court in Los Angeles in 992 and acquitted for lack of evidence. After returning to Mexico, he ﬁled a lawsuit under the Alien Tort Act in Los Angeles against Sosa and the other Mexicans who had abducted him. The Supreme Court ruled that the Alien Tort Claims Act oﬀers only a limited opportunity for foreign nationals to sue in US courts for alleged violations of international law that take place in other countries.3 The majority held that the Act is a [j]urisdictional statute creating no new causes of action ... Several reasons argue for great caution in adapting the law of nations to private rights ... A judge deciding on reliance on an international norm will ﬁnd a substantial element of discretionary judgment in the decision ... a decision to create a private right of action is better left to legislative judgment in most cases ... the potential implications for the foreign relations of the United States of recognizing private causes of action for violating international law should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign aﬀairs.

According to Warren Richey,32 this decision is ‘somewhat of a setback for international human rights activists and those seeking greater US involvement in the development of international law ... Although US courts will remain open under

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the ATS [ATCA] to foreign victims of human rights violations, it is now unclear which cases will qualify’.33 France

As stated in Chapter , the crime of genocide, other crimes against humanity (which include deportation, slavery, summary executions, kidappings, disappearances, torture or other inhumane treatment), ‘aggravated’ war crimes and participation in groups or conspiracy in order to prepare such crimes, were included in the New French Penal Code (Art. 2. and 22.) of 22 July 992, entered into force on  March 994. Crimes against humanity are treated as common crimes in accordance with French law or if an international convention gives jurisdiction to French courts. In Paris, on 20 July 993, ﬁve Bosnian nationals ﬁled a complaint for torture, war crimes, crimes against humanity and genocide. The Tribunal declared itself incompetent on 6 May 994, by reference to Article VI of the 948 Convention which only recognizes territorial jurisdiction or jurisdiction by an international penal tribunal. Another French court also declared itself incompetent for complaints of genocide submitted by Rwandan nationals in re Kalinda and others, and W. Munyeshyaka.34 The French law does not admit the jurisdiction of French courts when crimes against humanity have been committed outside France, by foreigners and when victims are also foreigners. On 7 June 2003, the International Court of Justice, in ‘Certain Criminal Proceedings in France (Republic of the Congo v. France), by fourteen votes to one, rejected the request of the Republic of Congo for a provisional measure ‘seek[ing] an order for the immediate suspension of the proceedings being conducted by the investigating judge of the Meaux Tribunal de Grande Instance’. The complaint had been ﬁled by several human rights associations, together with Congolese survivors of the Beach massacre committed in Brazzaville in 999, for crimes against humanity and torture against the President of the Republic of the Congo and several high Congolese oﬃcials. While the Court’s decision did not concern the substance of the complaint, it was hailed by human rights groups as a decision of great importance as it allowed the continuation of the investigation of the complaint by a French tribunal. A press report35 however surmised that the French authorities would have been relieved if the Court had accepted the Congo request, and had thus lost jurisdiction. The laxity of French authorities in their respect of their international conventional obligations was shown when Ely Ould Dah, a Mauretanian army lieutenant participating in a training course in France with the French army, was allowed to ﬂee the country on 5 April 2000 after being released on conditional liberty during a criminal investigation in France of alleged torture.36 Internal French law does not recognize universal jurisdiction for crimes against humanity and genocide. French courts should however implement the

Universal Jurisdiction

universal jurisdiction provisions of the Geneva Conventions and Protocols, and of the Torture Convention. Universal Jurisdiction: a Flawed Doctrine? Universal jurisdiction is actively promoted by human rights groups and international law associations, and by a number of national and international lawyers and practitioners, and availed of by a few courageous judges in a number of countries. At the same time, it is opposed by many governments, which favour territorial jurisdiction, and criticized by former diplomats. Among the latter, Henry A. Kissinger who, in a recent article,37 has underlined ‘The Pitfalls of Universal Jurisdiction’. For the author, The doctrine of universal jurisdiction asserts that some crimes are so heinous that their perpetrators should not escape justice by invoking doctrines of sovereign immunity or the sacrosanct nature of national frontiers. Two speciﬁc approaches to achieve this goal have emerged recently. The ﬁrst seeks to apply the procedures of domestic criminal justice to violations of universal standards, some of which are embodied in United Nations conventions, by authorizing national prosecutors to bring oﬀenders into their jurisdictions through extradition from third countries. The second approach is the International Criminal Court (...)

He adds that the notion that heads of state and senior public oﬃcials should have the same standing as pirates, hijackers and similar outlaws whose crimes were typically committed outside the territory of any state ‘is quite new’. For Kissinger, The danger lies in pushing the eﬀort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts.

Calling the Pinochet case ‘a dangerous precedent’, he considers that the unprecedented and sweeping interpretation of international law in Ex parte Pinochet would arm any magistrate anywhere in the world with the power to demand extradition, substituting the magistrate’s own judgment for the reconciliation procedures of even incontestably democratic societies where alleged violations of human rights may have occurred. Kissinger’s opposition to universal jurisdiction is understandable for a former US Secretary of State and National Security Adviser with a record as a realpolitik practitioner and promoter of US interests through overt and covert means. However, his reference to a ‘tyranny of the judges’, for an American, sounds shallow, in view of the litigation climate in the US and as the US Supreme Court has often ruled on political and social issues. In many countries, national justice has long been subjected to the ‘tyranny’ of governments, and their relative independence from government pressures or ﬁats has only appeared recently in a

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few democratic countries through democratic progress and the courage of a few judges, determined that the law should apply to all. However, their work is to apply national and international laws, not to take illegal initiatives. Better arguments are made by David B. Riskin Jr. and Lee A. Casey, in another recent article.38 They ﬁrst acknowledge that universal jurisdiction has a proper place in international law, begun as a device to ﬁght piracy and slave trading, oﬀences which took place on the high seas, beyond national boundaries. However In recent years ... , universality has been asserted for an increasing number of human rights oﬀenses, even though there is little practice (in the form of actual prosecutions that are accepted as legal by the defendant’s own country) to support these claims. Without such a body of consistent and accepted practice, universal jurisdiction remains an academic aspiration, rather than an established fact, and rightly so. If international law really did permit each state to prosecute the leaders of all others, based on its own interpretation of international law, this would prompt a new kind of war, one fought in courtrooms around the globe. Courts, however, would make normal international relations impossible.

Leaving aside the fact that ﬁghting in courtrooms would be preferable to actual war, it is correct that there is not yet a body of consistent and accepted judiciary practice condoning universal jurisdiction. Conclusion Universal jurisdiction still faces formidable obstacles. The principal one is the protection provided by the principle of national sovereignty, the rejection of interventions or interference in matters within the domestic jurisdiction of states. Other obstacles include the lack of national legislation to implement international instruments, the rejection of extradition through the assertion of the principle of territoriality of justice (for instance, in Argentina), the domination exercised by government authorities over justice in many countries. Another major diﬃculty arises from political, economic and diplomatic links binding states: the British government was not inclined to upset its relations with Chile by extraditing Pinochet to be judged in Spain, nor was the Spanish government eager to judge Pinochet on its soil, for similar reasons. The Bush administration has criticized the litigation-based system under the Alien Tort Act as ‘inequitable, unpredictable, occasionally costly to the US taxpayer and damaging to foreign policy and national security goals of this country’.39 Hall40 (with Amnesty International) has identiﬁed the following obstacles to universal jurisdiction: – lack of legislation or adequate legislation; – reluctance of prosecutors and investigating judges; – lack of political will by political oﬃcials or obstruction by political oﬃcials; – refusal of courts in the state where the crime occurred to extradite or try;

Universal Jurisdiction

– practical and legal problems in obtaining evidence; – choice of targets who arguably had immunity. In 200, a group of leading international legal scholars and jurists proposed ‘The Princeton Principles on Universal Jurisdiction’.Convinced that more public ﬁgures are likely in coming years to face trials for war crimes and other serious crimes under international law when there are no traditional jurisdictional links to the perpetrators or to their victims, the group believes that, if adopted by governments around the world, the Principles would go far to bring war criminals to justice. Principle 3 provides that for serious crimes under international law, national judicial organs may rely on universal jurisdiction even if their national legislation does not speciﬁcally provide for it. Under Principle 6, statutes of limitations or other forms of prescription shall not apply to such crimes. Principle 7 states that amnesties are generally inconsistent with the obligation of states to provide accountability for these crimes. Principle 0 deﬁnes grounds for refusal of extradition: ‘if the person sought is likely to face a death penalty sentence or to be subjected to torture or an other cruel, degrading, or inhuman punishment or treatment, or if it is likely that the person sought will be subjected to sham proceedings in which international due process norms will be violated and no satisfactory assurances to the contrary are provided’.4 Amnesty International has deﬁned ‘Principles on the eﬀective exercise of universal jurisdiction’: these are shown in Presentation 2.. Universal jurisdiction is still more a desirable objective than a reality. Since World War II, only a few countries have investigated, or prosecuted, or eﬀectively sanctioned suspects for war crimes, crimes against humanity, genocide, or have arrested suspects at the request of other states seeking to exercise such jurisdiction. More often, states have failed to exercise eﬀective jurisdiction over suspects of their own nationality, or of other nationalities, have rejected extradition requests or have not sought extradition. Belgium, which had adopted a broad legislation authorizing proceedings under the principle of universal jurisdiction found that it had opened Pandora’s box and had to bend to imperious US threats. The requests of Judge Garzon, the activist ‘hero’ of universal jurisdiction, for the extradition to Spain of Pinochet from London and of the military suspects from Argentina were rejected by the UK and by Argentina. He was denied support by his own government authorities. Recalling that the ultimate purpose of universal jurisdiction is to combat impunity and give relief to victims, legal practitioners, human rights organizations and other activists will need to continue their eﬀorts to ensure that governments integrate the requirements of international conventions into national legislation, that States Parties to the International Criminal Court adjust their legislation to the requirements of the Rome Statute, that governments, justice ministries and judges observe these requirements, that legal and judiciary precedents are created and followed. Their lobbying eﬀorts may be guided by Amnesty International Principles and by the Princeton Principles on Universal Jurisdiction.

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Presentation 2.1 14 Principles on the effective exercise of universal jurisdiction . Crimes of universal jurisdiction. States should ensure that their national courts can exercise universal and other forms of extraterritorial jurisdiction over grave human rights violations and abuses and violations of international humanitarian law. 2. No immunity for persons in oﬃcial capacity. National legislatures should ensure that their national courts can exercise jurisdiction over anyone suspected or accused of grave crimes under international law, whatever the oﬃcial capacity of the suspect or accused at the time of the alleged crime or any time thereafter. 3. No immunity for past crimes. National legislatures should ensure that their courts can exercise jurisdiction over grave crimes under international law no matter when they occurred. 4. No statutes of limitation. National legislatures should ensure that there is no time limit on the liability to prosecution of a person responsible for grave crimes under international law. 5. Superior orders, duress and necessity should not be permissible defences. National legislatures should ensure that persons on trial in national courts for the commission of grave crimes under international law are only allowed to assert defences that are consistent with international law. 6. National laws and decisions designed to shield persons from prosecution cannot bind courts in other countries. National legislatures should ensure that national courts are allowed to exercise jurisdiction over grave crimes under international law in cases where the suspects or accused were shielded from justice in any other national jurisdiction. 7. No political interference. Decisions to start or stop an investigation or prosecution of grave crimes under international law should be made only by the prosecutor, subject to appropriate judicial scrutiny which does not impair the prosecutor’s independence, based solely on legal considerations, without any outside interference. 8. Grave crimes under international law must be investigated and prosecuted without waiting for complaints of victims or others with a suﬃcient interest. National legislature should ensure that national law requires national authorities exercising universal jurisdiction to investigate grave crimes under international law and, where there is suﬃcient admissible evidence, to prosecute, without waiting for a complaint by a victim or any other person with a suﬃcient interest. 9. Internationally recognized guarantees for fair trials. National legislatures should ensure that criminal procedure codes guarantee persons suspected or accused of grave crimes under international law all rights necessary to ensure that their trials will be fair and prompt in strict accordance with international law and standards for fair trials. All branches of government, including the police, prosecutor and judges, must ensure that these rights are fully respected. 0. Public trials in the presence of international monitors. To ensure that justice is not only done but also seen to be done, intergovernmental and non-governmental organizattions should be permitted by the competent national authorities to attend. Source: Amnesty International, Library – Universal Jurisdiction, 4 Principles on the eﬀective exercise of universal jurisdiction http://web.amnesty.org/library/print/ENGIORS5300999

Universal Jurisdiction

Notes 

2

3

4 5

6

7

8 9

0  2 3

4 5 6

7

Amnesty International, ‘Universal Jurisdiction: The duty of states to enact and enforce jurisdiction’, , IV, accessed on 20 December 2003. See Amnesty International’s ‘Universal jurisdiction, 4 Principles on the eﬀective exercise of universal jurisdiction’, , accessed on 20 December 2003. Christopher Keith Hall. ‘Contemporary universal jurisdiction’ in Human Rights and Criminal Justice for the Downtrodden, Essay in honour of Asbjorn Eide, Martinus Nijhoﬀ Publishers, Leiden/Boston, 2003, pp. -37. Attorney General of Israel v. Eichmann, 36 Int’l L. Rep, 26 (Israel Dist. Ct. Jerusalem 96). Aﬀ ’d 36 Int’l. Rep. 277 (Israel Sup. Ct. 962). Demjanjuk v. Petrosky, 776 F.2d57, 582 (6th Cir. 985, cert. Denied, 475 US 06 (986). John Demjanjuk, following his extradition from the USA to Israel, was condemned to death on 8 April 988 by the Jerusalem District Court. He was later acquitted by the Israel Supreme Court for lack of proof, as there was no irrefutable proof that he was the guard of the Treblinka concentration camp. As a US naturalized US citizen, he then returned to the US. Hall records that investigations and investigations for crimes committed in the Former Yugoslavia and Rwanda have been initiated in Austria, Belgium, Denmark , France, Germany, the Netherlands and Switzerland (Hall, op.cit., p. 6). First Geneva Convention, Art. 49, Second Geneva Convention, Art. 50, Third Geneva Convention, Art. 29, Fourth Geneva Convention, Art. 46, Protocol I, Art. 85-88, Protocol II, Art. 6. Hall, op.cit., pp. 2-22. First Geneva Convention, Art. 50, Second Convention, Art. 5, Third Convention, Art. 30. Art. 47 adds to these breaches unlawful deportation or transfer or unlawful conﬁnement of a protected person and others. See also Art.  and 85 of Protocol I. Mr Abdulaye Yerodia Ndombasi was the Minister for Foreign Aﬀairs in oﬃce of the Democratic Republic of the Congo. See International Court of Justice Press Release 2002/04bis, 4 February 2002, ‘Summary of the Judgment of 4 February 2002’. Hall, op.cit. p. 25. See UN Doc. E/CN.4/Sub.2/46, 4 July 978, p. 50, quoted by Ana Peyro Llopis, La compétence universelle en matière de crimes contre l’humanité, Bruylant, Brussels, 2003, pp. 2-22. Hall, op.cit, p. 26. Beigbeder (2002), p. 58. Darren Hawkins, ‘Universal Jurisdiction for Human Rights: From Legal Principle to Limited Reality’, Global Governance, Vol. 9, No. 3 July-Sept. 2003, pp. 347-365. The Amnesty International report (see Note  above) calculates approximately 25 states with universal jurisdiction legislation. Australia, Austria, Belgium, Canada, Denmark, France, Germany, Great Britain, Israel, Luxemburg, the Netherlands, Senegal, Spain and Switzerland.

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8

9

20 2 22

23

24 25

26

27 28 29 30

3

32

The law was promulgated on 7 August 2003. It also endorsed changes introduced by a law of 23 April 2003 which had added to the list of crimes against humanity three crimes contained in the Rome Statute. A mechanism was introduced to ﬁlter out cases that did not present a minimum link with Belgium. Amnesty International Belgium, La Ligue des Droits de l’Homme, Liga voor Mensenechten, la Fédération internationale des Droits de l’Homme, Avocats sans Frontières and Human Rights Watch – see ,  August 2003, accessed on 6 August 2003. Baltasar Garzon is one of six members of Spain’s National Court (Audiencia Nacional) who have the power to investigate crimes and recommend prosecution. See Beigbeder (2002), pp. 55-56. See Paul Mitchell, ‘Spanish judge demands extradition of Argentine oﬃcers’, World Socialist Web Site, 6 July 2003 . See Le Monde, 2 June,  July and  September 2003, International Herald Tribune, 30 June 2003, – Paul Mitchell, ‘Argentine judge frees military oﬃcers facing extradition’, 26 September 2003, , Human Rights Watch Monthly Email Update, August 2003, . ‘Alien Tort Claims Act of USA’, undated – accessed on 6 July 2004. ‘Chile: US Jury Finds Chilean Ex-Oﬃcer Liable for Abuses – Ruling Marks First US Jury Verdict on Crimes Against Humanity’, Human Rights Watch Documents on Chile, 6 October 2003. ‘Remedies for War Crimes at the National Level’ by Catherine A. Mackinnon in The Journal of the International Institute, University of Michigan, Vol. 6, No. , ‘Talk delivered to University of Michigan Law School Reunion if International Alumni’, 8 October 997. United States District Court, S.D. New York, Louise MUSHIKIWABO, et al., Plaintiﬀs v. Jean Bosco BARAYAGWIZO, Defendant, No. 94 CIV.3627 (JSM), April 996. See ICTR/MEDIA, Fondation Hirondelle, ‘Defence up in arms over judgment and sentence’, 8 December 2003. Statute of the ICTY, Art. 24.3, Statute of the ICTR, Art. 23.3. See ‘Remarks of Louise Mushikiwabo’ in ‘International War Crimes Trials: Making a Diﬀerence?’, Proceedings of an International Conference held at the University of Texas School of Law, November 6-7, 2003, Steven R. Tatner and James L. Bischoﬀ, Editors, Austin Texas. For Ms. Mushikiwabo, ‘as a victim of the genocide. that single fact that I was able to bring a lawsuit against this man [one of the masterminds of the Rwandan genocide], however symbolic, was very gratifying. The judicial system here [in the US] and the legal system in this country have provided more comfort that the International Criminal Tribunal for Rwanda’, p. 69. Supreme Court of the United States, SOSA v. ALVAREZ-MACHAIN et al., Certiorari to the United States Court of Appeals for the Ninth Circuit, No. 03-339, 29 June 2004. ‘Ruling Makes It Harder for Foreigners to Sue in US Courts’, Christian Science Monitor, 30 June 2004 .

Universal Jurisdiction 33 For analysts, the Supreme Court decision was a victory for US-based corporations

34 35 36 37

38 39 40 4

which had been the target of several lawsuits under the Alien Tort Act, aiming at increasing corporate accountability vs human rights. See Llopis, op.cit., p. 2. Le Monde, 9 June 2003. Hall, op.cit., p. 35. ‘The Pitfalls of Universal Jurisdiction’, Foreign Aﬀairs, Vol. 80, No. 4, July/August 200, pp. 86-96. This essay is adapted from his book Does America need a Foreign Policy? Toward a Diplomacy for the 2st Century. ‘Universal jurisdiction is a ﬂawed doctrine’, International Herald Tribune, 23 July 2003. William Taft 4th, State Department’s legal adviser in a US Senate testimony in July 2003: International Herald Tribune, 4 August 2003. Hall, op.cit., pp. 34-36. ‘Princeton University Program In Law and Public Aﬀairs, The Princeton Principles on Universal Jurisdiction 28 (200), .

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CHAPTER 3

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was created by the UN Security Council in 993, i.e. 47 years after the Nuremberg judgments were rendered. The creation of this Tribunal, followed by the creation, in 994, of the International Criminal Tribunal for Rwanda (ICTR) also by the Security Council, was unexpected and unplanned. By its Resolution 260 (III) adopted on 9 December 948, the UN General Assembly had considered that there would be an increasing need of an international judicial organ for the trial of certain crimes under international law and invited the International Law Commission to study the desirability and possibility of establishing such an organ for the trial of persons charged with genocide or other crimes. 50 years then elapsed before the Statute of the International Criminal Court was ﬁnally adopted. States were clearly not keen nor willing, for many years, to continue the work of the Nuremberg and Tokyo Tribunals, the ﬁrst generation of international criminal tribunals, with diﬀerent, speciﬁc or global mandates. The second generation, that of the ICTY and ICTR, was born as ad hoc, temporary remedies to political problems. Common Traits between the Two Generations of Tribunals A World War carried out in Europe and in Asia, millions of deaths and a genocide were at the origin of the Nuremberg and Tokyo Tribunals: organized justice was preferred to violent retribution, or tacit amnesty. The creation of the ICTY was a judiciary response to the exactions, war crimes and crimes against humanity committed by all parties during the dismemberment of Yugoslavia and by the ethnic cleansing initiated by the Serbs. The creation of the ICTR was a belated response to the genocide committed by the Hutu against the Tutsi in Rwanda. While the dramatic events which occurred in the Former Yugoslavia and in Rwanda were not comparable, in scale, to those of World War II, clearly the immediate cause of, and justiﬁcation for, all four tribunals were triggered by the great tragedies caused by war- and/or genocide-related events.

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Nuremberg, Tokyo and the new tribunals were created by an exception to the norms of customary international law, which would have required the negotiation and approval of an international treaty in a conference and ratiﬁcation by a set number of states’ signatories, e.g. the process adopted for the creation of the permanent International Criminal Court. Nuremberg was established by an international agreement of the four victors of World War II, the Tokyo Tribunal was established by a Proclamation of General MacArthur, the Supreme Commander for the Allied Powers in Japan – the ICTY and the ICTR have been created by the UN Security Council. The Nuremberg and Tokyo tribunals ceased to exist after they rendered their judgments. Created by the Security Council, the ICTY and the ICTR are also temporary tribunals, due to be dissolved in 200, as ordered by the Council. All four tribunals have had or have limited, deﬁned jurisdiction: over speciﬁc persons, crimes committed in speciﬁc areas, speciﬁc crimes, speciﬁc time periods. The Nuremberg tribunal was to try and punish the major war criminals of the European Axis – in eﬀect, only high-level German oﬃcials – the Tokyo tribunal only tried Japanese oﬃcials. Nuremberg judged Germans for crimes committed in the European area, Tokyo judged Japanese oﬃcials for crimes committed in the Far East. The ICTY and the ICTR also have limited territorial jurisdiction: the territory of the Former Yugoslavia for the ICTY – Rwanda and Neighbouring States for the ICTR. Both the ICTY and the ICTR have a time limitation: the ICTY’s jurisdiction applies to serious violations of international humanitarian law committed since 99, the ICTR mandate is limited to crimes committed between  January and 3 December 994. Similarly to Nuremberg and Tokyo, the ICTY and ICTR are judging individuals for war crimes and crimes against humanity. As in Nuremberg and Tokyo, the oﬃcial position of any accused person, whether a head of state or government or a responsible government oﬃcial, does not relieve that person of criminal responsibility, nor mitigate punishment. Differences between the Two Generations of Tribunals Both Nuremberg and Tokyo were military tribunals, created during the military occupation of, respectively, Nazi Germany and Japan. The new tribunals are not military tribunals. The German and Japanese accused political and military leaders were in detention, available and ready to be judged by the Nuremberg and Tokyo tribunals. None of those to be indicted and judged by the ICTY and the ICTR were in detention when these tribunals were created. The ICTY was set up while the Yugoslav wars were still active, while Nuremberg and Tokyo were created after the defeat of Nazi Germany and Japan. The new tribunals are real international tribunals, not victors’ tribunals, a signiﬁcant progress over Nuremberg and Tokyo, where judges and prosecutors were all nationals of the victorious countries.

The International Criminal Tribunal for the Former Yugoslavia

Nuremberg and Tokyo had jurisdiction over crimes against peace, war crimes and crimes against humanity, insofar as the latter were related to crimes against peace. The new tribunals have no jurisdiction over crimes against peace. The ICTY has jurisdiction over grave breaches of the Geneva Conventions of 949, violations of the laws or customs of war, genocide and crimes against humanity. The ICTR has jurisdiction over genocide, crimes against humanity and violations of article 3 common to the Geneva Conventions and of Additional Protocol II, speciﬁcally applicable to armed conﬂict not of an international character. There is no reference to ‘violations of the laws or customs of war’ in the ICTR Statute in view of the internal nature of the Rwanda conﬂict. Contrary to Nuremberg and Tokyo, an accused person may not be tried in absentia. While the Nuremberg judgments were ﬁnal and not subject to judiciary review, the new Tribunals have Trial and Appeals Chambers. They may impose a prison sentence, but not the death penalty, as in Nuremberg and Tokyo. The Conﬂict in the Former Yugoslavia Wars started in Croatia and Bosnia, when Yugoslavia broke up into several independent countries. Croatia and Slovenia declared their independence in 99, followed by Macedonia and Bosnia in 992. While the secession of Slovenia and Macedonia were relatively peaceful, Serb military and para-military forces started a war when Croatia declared independence in June 99, in order to protect the Serb minority. Another conﬂict began in newly independent Bosnia in April 992, where the strong Serb minority (30 per cent) was determined to remain within a united Yugoslavia and to build a greater Serbia. By 993, the Bosnian Muslim government was besieged in the capital Sarajevo, surrounded by Bosnian Serb forces who controlled around 70 per cent of the country. In Central Bosnia, another war opposed Muslim forces to Bosnian Croats who wanted to form part of a greater Croatia. The UN had deployed the UN Protection Force (UNPROFOR) to monitor a ceaseﬁre and to establish ‘safe zones’ including Sarajevo and Srebrenica. In July 995, Srebrenica became the site of the worst massacre in the conﬂict, where approximately 7 500 Muslim men and boys were killed by Bosnian Serb forces. In December 995, the Dayton Peace Accord was signed by the parties to the conﬂict. In 998, an internal conﬂict opposed the Kosovo Liberation Army and Serb armed forces. Following a NATO air campaign against Yugoslavia from 24 March to 0 June 999, Serb troops withdrew, replaced by the deployment of the NATO-led KFOR mission. Since then, Kosovo has been under an interim UN administration. The Bush Administration was originally hostile to intervening in the Balkan conﬂict and to the creation of an international tribunal. The US felt that the conﬂict should be dealt with by the Europeans. The Europeans were divided. Only Germany called for an intervention. France and the UK supported and participated in the UN humanitarian activities and in the UN Protection Force but resisted calls for a forceful, well armed intervention to stop ethnic cleansing and its attendant massacres, rapes, torture and streams of refugees.

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By resolution 780 of 6 October 992, the Security Council established a Commission of Experts to investigate and collect evidence on ‘grave breaches of the Geneva Conventions and other violations of international humanitarian law’ in the conﬂict in Former Yugoslavia. However, the priority for the Western Powers and the UN was a political settlement, and they felt that an activist Commission might be an impediment to this aim. The Commission’s Final Report of May 994 stated that out of a population of six million, .5-2.0 million were refugees abroad after being deported or forced to ﬂee their homes. Civilian and military casualties exceeded 200 000. Violations included murder, rape, torture, kidnapping, hostage-taking, forced eviction and imprisonment.2 The reality of the atrocities was conﬁrmed in another, separate investigation carried out by Tadeusz Mazowiecki, former Polish Prime Minister, appointed by the UN Human Rights Commission in August 992 as a Special Rapporteur. By the time that the Clinton Administration took over from the Bush Administration (on 26 January 993), the US had come around to support the proposed creation of a tribunal. Based on French and Italian draft resolutions, the Security Council approved resolution 808 on 22 February 993 and 827 of 25 May 993, including the Statute of the Tribunal in the latter’s Annex. Roland Dumas, the French Foreign Aﬀairs Minister, told a French journalist later: ‘The tribunal was a political weapon to threaten Karadzic and Mladic. I also hoped that it could play a dissuasive role’.3 The Chinese were reticent but were told that Tibet would not be involved. Russia had its own internal problems and Boris Yeltsin needed American support. Islamic countries, including Pakistan, a non-permanent member of the Security Council at the time, supported the resolutions. Creation of the ICTY The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 99 was established by Security Council resolution 827, adopted on 25 May 993. The Council had expressed once again its grave alarm at continuing reports of widespread and ﬂagrant violations of international humanitarian law within the territory of the former Yugoslavia, and especially in Bosnia and Herzegovina. These violations included mass killings, massive, organized and systematic detention and rape of women, and the continuance of ethnic cleansing. The Council determined that this situation constituted a threat to international peace and security, which justiﬁed the creation of the Tribunal under Chapter VII of the UN Charter. The objectives of the Tribunal

The Council’s resolution includes the following objectives: – the prosecution of persons responsible for serious violations of international humanitarian law;

The International Criminal Tribunal for the Former Yugoslavia

– halting and eﬀectively redressing the violations; – contributing to the restoration and maintenance of peace; – the work of the Tribunal should be carried out without prejudice to the right of victims to seek compensation for damages. While the resolution states that the Tribunal has been established for the ‘sole purpose’ of prosecuting persons responsible for these serious violations in the Former Yugoslavia since 99, a broader mandate and expectations have been assigned to the Tribunal by legal experts4 and observers as follows: On international law and justice: – bring justice to a war-torn area and show that justice is being done; – enforce international law, expand and interpret application of international law; – end impunity for violations, especially for senior political and military leaders; – re-establish the rule of law in the countries concerned; For victims: – restore their dignity and their rights; – provide a safe forum to victims to state their case; – provide for reparation to victims; On procedures: – demonstrate fairness and highest standards of due process, to legal observers and the general public; – provide exemplary procedures to serve as model for rebuilding a legal system; Peace and reconciliation: – provide a sound foundation for civil peace and reconciliation; Historical record: – create an accurate historical record; – for the concerned populations and for the general public, explain what caused the violations and illustrate patterns of violations. These broader objectives and expectations may be over-ambitious and the Tribunal has had to set priorities and focus on its essential task, e.g. the fair prosecution and judgment of those most responsible for serious violations of international humanitarian law. The arrest of the main perpetrators and fair trials are the necessary basis for reaching some of the other objectives. Mandate and structure

The Tribunal has the power to prosecute persons who have committed or have ordered to be committed grave breaches of the Geneva Conventions of 949 (the Law of Geneva) – persons who have violated the laws or customs of war (the Law of The Hague) – persons who have committed genocide (the 948 Genocide Convention) – persons responsible for crimes against humanity (in part, the Law

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of Nuremberg), crimes committed in armed conﬂicts, whether international or internal in character, and directed against any civilian population. The Tribunal and national courts have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since  January 99. However, the Tribunal can claim primacy over national courts and may take over national investigations and proceedings at any stage if this proves to be in the interest of international justice. The Tribunal, whose seat is in The Hague, consists of three organs. The ﬁrst organ, the Chambers, was originally composed of eleven independent judges of diﬀerent nationalities. Three serve in each of the Trial Chambers, ﬁve serve in the Appeals Chamber. High judicial qualiﬁcations are required of the judges. They are elected by the UN General Assembly from a list submitted by the Security Council. The judges elect their President. The revised Statute of 30 November 2000 has increased the composition of the Chambers: sixteen permanent independent judges and a maximum at any one time of nine ad litem independent judges. In 2003, the Tribunal had a total of 24 judges from 23 nations: 6 permanent judges, including two judges from the ICTR serving in the Appeals Chamber, and eight ad litem judges. On 23 February 2003, the permanent judges elected Theodor Meron (USA) President, eﬀective  March 2003. He succeeded Claude Jorda (France). The second organ is that of the independent Prosecutor, who is appointed by the Security Council on nomination by the Secretary-General. The present Chief Prosecutor is Carla Del Ponte (Switzerland), since 5 September 999. The third organ is the Registry, responsible for the administration and servicing of the Tribunal, headed by Hans Holthuis (Netherlands) since  January 200. The Prosecutor initiates investigations ex-oﬃcio or on the basis of information obtained from any source, particularly from governments, UN organs, intergovernmental and non-governmental organizations. Upon determination that a prima facie case exists, the Prosecutor prepares an indictment containing a concise statement of the facts and crime or crimes with which the accused is charged under the Statute. The indictment is transmitted to a judge of the Trial Chamber who may either conﬁrm it, if satisﬁed that a prima facie case has been established, or dismiss it if he is not so satisﬁed. Upon conﬁrmation of an indictment, the judge may, at the request of the Prosecutor, issue orders and warrants for the arrest, detention, surrender or transfer of indicted persons. In the best circumstances, the indicted person is taken into custody, informed of the charges against him/her and transferred to the Tribunal. Hearings are public and the rights of the accused are protected, as well as those of victims and witnesses. Judgements are rendered by a majority of the Trial judges and delivered in public. Separate or dissenting opinions may be appended. Penalties are limited to imprisonment whose terms should be related to the general practice regarding prison sentences in the courts of the former Yugoslavia. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the oﬀence and the individual circumstances of the convicted person.

The International Criminal Tribunal for the Former Yugoslavia

The Chambers may order the return of any property and proceeds acquired by criminal conduct to their rightful owners. The Appeals Chamber hears appeals from persons convicted by the Trial Chambers or from the Prosecutor on the grounds of an error on a question of law invalidating the decision or an error of fact which has occasioned a miscarriage of justice. The Appeals Chamber may aﬃrm, reverse or revise the decisions taken by the Trial Chambers. Imprisonment is served in a state designated by the Tribunal from a list of states which have indicated to the Security Council their willingness to accept convicted persons. By the end of 2003, convicted persons were serving their sentence in Austria, Finland, Italy, Germany, Norway, Spain and Sweden in implementation of their agreement with the UN on the Enforcement of Sentences. States ‘shall’ cooperate with the Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. They ‘shall’ comply without undue delay with any request for assistance or an order issued by a Trial Chamber including the identiﬁcation and location of persons, the taking of testimony and the production of evidence, the service of documents, the arrest or detention of persons, the surrender or the transfer of the accused to the Tribunal (art. 29). Budget and stafﬁng

The Tribunal’s expenses are funded by the UN regular budget. A few governments and organizations have made additional voluntary contributions and provided free legal assistance through gratis personnel.5 The budget of the Tribunal ﬁnanced by the UN regular budget has almost doubled from $64 775 300 for 998 to $235 955 000 for the biennium 2002-2003.6 As of 3 July 2003, the Voluntary Fund had received approximately $40 million in cash contributions.7 In the period  August 2002 to 3 July 2003, the Tribunal received approximately $2.2 million and pledges totalling $650 000 in voluntary contributions from states, intergovernmental and non-governmental organizations. These contributions have supported the Oﬃce of the Prosecutor’s arrest initiative, military analysis, operations in Kosovo, investigations in the former Yugoslav Republic of Macedonia, review of cases being considered for prosecution in local courts through the ‘rules of the road’ project, and the Tribunal’s outreach programme, which works to keep the people of the region informed about the Tribunal’s activities. The number of staﬀ has also increased from 784 approved staﬀ posts in 998 to  058 in 2003: the actual number of staﬀ employed as of August 2003 was 30 from 83 countries. The Work of the Tribunal

The number of persons indicted since the inception of the Tribunal, by categories, as of January 2004, is shown in Presentation 3.. Among the more signiﬁ-

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cant data: 9 accused have appeared in proceedings before the Tribunal, 54 were in custody at the Detention Unit, 25 persons have received their ﬁnal sentence, 8 sentences have been served, 3 were serving their sentence in the jails of seven countries, while four were awaiting their transfer to such jails. Three persons were found not guilty by the Appeals Chamber, two were acquitted by the Trial Chamber, 2 indictments were withdrawn. In the period  August 2002 to 3 July 2003, the Tribunal held six trials simultaneously: the three Trial Chambers handled more cases during this period than in previous years. They examined 29 merit cases (as well as three cases of contempt) and rendered four ﬁnal judgments on the merits or sentencing judgments. In 2003,  more accused were transferred to The Hague. Among those taken into custody were Milan Milutinovic, the former President of Serbia, Vojislav Seselj, the chairman of the Serbian Radical Party and a member of the Serbian Parliament, and Jolica Stanisic, Chief of the State Security Service of the Republic of Serbia. Presentation 3.1 Number of individuals publicly indicted since the inception of the ICTY by categories, as of January 2004 54 5 20

Accused currently in custody at Detention Unit Accused provisionally released Arrest warrants issued against accused currently at large (including Radovan Karadzic and Ratko Mladic) 2 Persons charged with contempt of the Tribunal 25 Accused transferred/released following completion of proceedings – 2 accused acquitted by the Trial Chamber, proceedings completed – 3 accused found not guilty by the Appeals Chamber – 3 accused transferred to serve sentence – 7 sentences served 35 completed cases – 2 indictments withdrawn including 5 after commencement of proceedings – 4 accused died, including 5 after commencement of proceedings 9 Accused have appeared in proceedings before the Tribunal 26 accused at pre-trial stage 7 accused currently at trial 5 accused awaiting Trial Chamber Judgment or Sentencing (5 pleaded guilty) 46 accused tried 5 persons at appeal stage (2 pleaded guilty) 25 persons received their ﬁnal sentence 4 awaiting transfer 3 transferred to Finland, Sweden, Italy, Germany, Norway, Spain, Austria Source: Excerpted from ‘The ICTY at a glance, Key ﬁgures of ICTY Cases’ http://www. un.org/icty/glance/index.htm – 5 January 2004

The International Criminal Tribunal for the Former Yugoslavia

A new strategy

Under pressure from the Security Council, and particularly from the USA, the Tribunal had to accept to set limits to its work and life. On 28 February 2002, US Ambassador-at-large for War Crimes Issues PierreRichard Prosper testiﬁed before the House International Relations Committee regarding the US administration views on the future of the ICTY. While conﬁrming US support for both the ICTY and the ICTR, he referred to allegations of mismanagement and abuse, and criticized them for being, at times, costly, lacking in eﬃciency and being too slow. The US had urged for an ‘end-game’, the Tribunals should conclude their work by 2007-2008. The President of the Parliamentary Assembly of the Council of Europe replied that ‘Pressure from the US administration to close down the two International Criminal Tribunals in The Hague and Arusha is unacceptable’.8 It is now agreed that the Tribunal is to complete all trial activities by 2008, and to dispose of all appeals by 200. This is being done through a strategy endorsed by the President of the Security Council on 23 July 2002.9 The ﬁrst element of this strategy was not new. It is to concentrate on trying political, military and paramilitary leaders. The original strategy of investigating lower-level persons directly involved in carrying out the crimes in order to build eﬀective cases against the military and civilian leaders who were party to the overall planning and organization of those crimes had been initiated by the ﬁrst Prosecutor, Richard Goldstone (South Africa). His successor, Louise Arbour (Canada), had changed it in 997. Leaving aside the ‘small ﬁsh’, her team focused on the military hierarchy and political leaders. This strategy was followed by her successor, Carla Del Ponte (Swizerland), when she took oﬃce in 999. The second element is innovative, a consequence of the ﬁrst, and compelled by the need for the Tribunal to complete its work by 200. It is to transfer cases involving intermediary and lower-level accused to competent national jurisdictions. The Tribunal’s Rules of Procedure and Evidence were amended accordingly on 30 September 2002. Amended Rule  bis sets out the criteria that must be satisﬁed before a case may be referred to a domestic court once an indictment has been conﬁrmed. A Trial Chamber must approve the referral and it must consider the gravity of the crimes charged and the level of responsibility of the accused. Referrals are permitted regardless of whether the accused is already in the custody of the Tribunal. Referrals may be made either to the state in whose territory the crimes are alleged to have taken place or to the state in which the accused was arrested. In substance, it requires the ﬁrmer installation of democracy in those countries and the strengthening of their national judicial systems. In implementation of this strategy, the Tribunal has provided the Oﬃce of the High Representative for Bosnia and Herzegovina with advice regarding its project to establish a specialized war crimes chamber in the State Court of Bosnia and Herzegovina, to which the Tribunal could refer certain cases for trial. In February 2003, the Tribunal and the Oﬃce of the High Representative signed

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Joint Conclusions, establishing a basis for a common plan to implement that project. It is however doubtful that such a scheme could be implemented in Serbia before the closure of the Tribunal, in view of the current oﬃcial and popular hostility towards the ICTY and the links between persons accused and serving Serb oﬃcials, which would aﬀect the desired impartiality and independence of the Serb courts. As a more positive note, on 9 March 2004, six Serbs accused of war crimes in the Vukovar hospital on 20 November 99 appeared in Belgrade for their trial before the Serb Special Tribunal for war crimes. The prosecution ﬁles had been prepared in cooperation with the ICTY.0 Whether the scheme can be successfully implemented in Croatia is uncertain. The increase of the number of permanent judges from  to 6, and the creation of a pool of up to nine ad litem judges, approved by the Security Council by resolution 329 on 30 November 2000, were also intended to facilitate and accelerate the work of the Tribunal. In the same spirit, on 9 May 2003, the Security Council amended the Tribunal’s Statute to permit ad litem judges to do pre-trial work in addition to participating in the trials to which they were assigned (Resolution 48 (2003)). Plea-bargaining

The increased use of plea-bargaining is also part of the new strategy. It was originally rejected by the prosecutors. But facing a heavy workload and the 200 deadline for closing the Tribunal, they followed a lead by American lawyers on the prosecution staﬀ of the Tribunal. This judiciary technique is familiar in the US, British, Canadian and other common law justice systems, but is not generally accepted in civil law countries. Besides shortening costly trials, other beneﬁts include, for the Tribunal, the acknowledgement of guilt by accused, the expression of remorse for exactions, the accused’s cooperation in providing vital new evidence for the prosecution of other indicted persons. Confessions make more diﬃcult the denials and revisionism about the war. They reinforce the legitimacy of the Tribunal. The beneﬁt for the accused is a reduced sentence. Some legal experts and judges have expressed concern, saying that serious charges are being dropped and deals are becoming too favourable. Some reduced sentences have also been protested by victims’ representatives. From 996 to 2003, there have been 6 guilty pleas at the Tribunal. Between May and November 2003, eight defendants have accepted deals with the prosecution and pleaded guilty to various crimes. Accused are instructed to enter a plea under Article 20.3 of the Statute of the Tribunal. Under Rule of Procedure 62 revised on 28 July 2003, the accused is called upon to enter a plea of guilty or not guilty of each count of the indictment. Rule 62 bis on Guilty Pleas states:

The International Criminal Tribunal for the Former Yugoslavia If an accused pleads guilty in accordance with Rule 62 (vi), or requests to change his or her plea to guilty and the Trial Chamber is satisﬁed that: (i) the guilty plea has been made voluntarily; (ii) the guilty plea is informed; (iii) the guilty plea is not equivocal; and (iv) there is a suﬃcient factual basis for the crime and the accused’s participation in it, either on the basis of of independent indicia or on lack of any material disagreement between the parties about the facts of the case, the Trial Chamber may enter a ﬁnding of guilt and instruct the Registrar to set a date for the sentencing hearing.

Under Rule 62 ter, by agreement between the Prosecutor and the defence, the Prosecutor will apply to amend the indictment accordingly, and/or submit that a speciﬁc sentence or sentencing range is appropriate, or not oppose a request by the accused for a particular sentence or sentencing range. However, the Trial Chamber is not bound by such agreement. The Plavsic case stands out among recent cases, as it involves both voluntary surrender to the Court and a guilty plea. The case originally concerned two highranking Bosnian Serb politicians, Biljana Plavsic and Momcilo Krajisnik. They were charged alternatively as commanders and participants in a joint criminal enterprise for the commission of oﬀences including crimes against humanity, violations of the laws or customs of war, grave breaches of the Geneva Conventions and genocide. Krajisnik was arrested by international forces in early 2000 and Plavsic, the only female indictee to date, surrendered voluntarily to the Tribunal in January 200. On 2 October 2002, Trial Chamber III accepted a change of plea from Plavsic to one of guilty in respect of one charge of persecution. The case was severed from that of Krajisnik. The prosecution withdrew all other charges against the accused, notably that of genocide and sought a sentence in the range of 5-25 years. Plavsic had acknowledged the crimes that took place during the war in Bosnia as well as the extent of her involvement, and she expressed remorse for the horrors committed against the non-Serbs during the Bosnian war. For many, her attitude showed the path to national reconciliation in the Federation of Bosnia-Herzegovina and the Republic of Srpska. The defence suggested that, in view of the age of the accused (73), any sentence in excess of her calculated life expectancy of 8,2 years would amount to de facto life imprisonment. On 27 Febuary 2003, the Trial Chamber sentenced the accused to  years of imprisonment. Neither party appealed. On 26 June 2003, the accused was transferred to Sweden to serve her sentence.2 In taking its sentence, the Tribunal reiterated its position that the main principles in sentencing for international crimes are retribution and deterrence. To achieve both aims, ‘the cardinal feature in sentencing is the gravity of the crime’. However, the Court gave credit to Plavsic for pleading guilty together with expressing remorse and speaking in favour of reconciliation, for her voluntary surrender to the Tribunal and for her post-conﬂict conduct (she tried to implement the Dayton agreement while she was President of the Republic of Srpska. The

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Tribunal also took into account her age, but to a lesser extent than wished by the defendant’s lawyers. The sentence was deemed excessively lenient by some, and too harsh by others.3 Sentences given to two accused, both senior Serbian Serb oﬃcers directly involved in organizing the Srebrenica massacre of more than 7000 Bosnian Muslems in July 995, and who both entered guilty pleas were widely diﬀerent. Momir Nikolic, a former intelligence oﬃcer, described the steps he took for the preparations of the later mass executions. Dragan Obrenovic, a brigade commander, recounted how in the ﬁnal hours, prisoners were moved to diﬀerent detention and killing sites in a deliberate move to avoid detection by the Red Cross and the UN Mission. According to a directive, ‘The life of the enemy [the Bosnian Muslims] has to be made unbearable and his temporary stay in the enclave made impossible, so that they leave en masse as soon as possible, realize that they cannot survive here’. Nikolic gave important testimony against his commanders and other accused. The prosecutors recommended a prison sentence of 5 to 20 years, dropping charges of genocide in exchange for guilty plea on persecution. On 2 December 2003, the Trial Chamber, presided by Liu Daqun (China), challenged the prosecution’s recommendation. Nikolic received a sentence of 27 years. In its ruling, the Chamber stated that ‘Once a charge of genocide has been conﬁrmed, it should not simply be bargained away’, and that sentences must be ‘based on the criminal conduct’ of the defendant, not on oﬀers by the prosecution. In an apparent opposition to the spirit of plea-bargaining, the ruling warned prosecutors against trying to save time and money, suspects should not be rewarded for testifying about war crimes attributed to them. Suspects who give damaging testimony in other cases should not be punished less than those who were equally guilty but did not have the same opportunity. Still, Liu said that the verdict took into account Nikolic’s good behaviour before the war, his cooperation with the Tribunal and his remorse.4 Obrenovic pleaded guilty in May 2003 to one count of persecution as a crime against humanity and then testiﬁed against two co-defendants. In exchange, prosecutors dropped four counts of murder, extermination and complicity in genocide and recommended a 5-to-20 year sentence. The same Trial Chamber presided by Judge Liu sentenced Obrenovic on 0 December 2003 to 7 years. Liu said that the Chamber had considered Obrenovic’s remorse, his cooperation with the Tribunal and his conduct before the war as factors easing the severity of the sentence. Liu also said that this sentence should not be interpreted as a dismissal of the gravity of the Srebrenica massacre, but Obrenovic ‘did not conceive of the murder operation’. Nikolic had been an active participant in these crimes and at times evasive in testimony, while Obrenovic was guilty mostly of inaction.5 A sentence of eight years given on 28 October 2003 to Predrag Banovic, a Bosnian Serb prison camp guard who pleaded guilty to crimes against humanity was criticized as too lenient by some observers. Banovic had murdered ﬁve Bosnian Muslims or Bosnian Croats at the Keraterm camp in Bosnia in 992. He participated in the beating of another 28 prisoners, with the intent to inﬂict seri-

The International Criminal Tribunal for the Former Yugoslavia

ous bodily harm or death. The sentence was in line with a joint recommendation from the accused and prosecutors stated in the plea agreement. The Chamber accepted as mitigating circumstances Banovic’s young age (23 at the time of the crimes), cooperation with the prosecutors, and expression of remorse.6 His sentence may be reduced to six years if he demonstrates good behaviour. In similar cases earlier, low-level guards who had not pleaded guilty received 20-year sentences. ‘Big ﬁsh’ before the Tribunal

Several senior military commanders have either been captured or surrendered to the Tribunal. Bosnian Serb Major General Rasdislav Krstic was arrested in the US sector in December 998 under a sealed indictment and under protests of the Bosnian Serb authorities. On 2 August 200, he was found guilty of genocide for his role in the massacre of thousands of Bosnian Muslims in Srebrenica between 0 and 9 July 995. He was sentenced to 46 years in jail. It was the ﬁrst sentence for genocide rendered by the Tribunal. On 5 December 2003, the Former Bosnian Serb General Stanislas Galic was condemned to 20 years in jail for spreading terror among Sarajevo residents during the city’s long siege with a campaign of sniping and shelling attacks. He was found guilty of one charge of violating the laws or customs of war by spreading terror among a civilian population, and four charges of crimes against humanity, for murder and inhumane acts other than murder.7 Both General Pavle Strugar and Admiral Miodrag Jokic surrendered voluntarily to the Tribunal on 2 October 200 and 2 November 200 respectively. They are charged with crimes committed in the operations conducted in the Dubrovnik area. Croatian General Tihomir Blaskic, then the most senior military leader in the Tribunal’s custody, was sentenced to 45 years’ imprisonment on 3 March 2000. The charges against him related to his activities as Colonel in the Croat armed forces. They involved grave breaches of the Geneva Conventions, violating the laws or customs of war, and crimes against humanity. Croatian General Rahim Ademi surrendered to the Tribunal on 25 July 200. However, another suspect, General Ante Gotovina, who led the Operation Storm, refused to surrender. Among the civilians, as noted above, Biljana Plavsic, former President of the Serbian Republic of Bosnia and Herzegovina and later a member of collective and expanded Presidencies of the Republic Srpska, surrendered to the Tribunal, pleaded guilty to the crime of persecution and was sentenced to  years’ imprisonment. Milan Milutinovic, the former President of Serbia, surrendered to the Tribunal on 27 January 2003. He ﬁrst appeared before Trial Chamber III on 27 January 2003. Vojislav Seselj surrendered to the Tribunal on 24 February 2003. He is charged with crimes against humanity and violations of the laws and customs of war. His indictment alleges that as president of the Serbian Radical Party, he

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participated in a plan to forcibly remove a majority of the Croat, Muslim and other non-Serb populations from approximately one-third of the territory of the Republic of Croatia, large parts of Bosnia and Herzegovina, and parts of Vojvodina in Serbia, in order to create a new Serb-dominated state. But the major ‘catch’ was that of former President Slobovan Milosevic, the former President of Serbia, the ﬁrst former head of state to be judged by an international criminal court. On  April 200, under US ﬁnancial pressure, the authorities of the Federal Republic of Yugoslavia decided to jail Milosevic in Belgrade, and indicted him for abuse of power and corruption.8 President Bush told the Yugoslavia President Kostunica on 9 May 200, during the latter’s visit to Washington, that US and international aid to his country depended on Belgrade’s cooperation with the Tribunal. On 29 June 200, again following US ﬁnancial pressure, Milosevic was transferred to The Hague by the government of Serbia led by President Zoran Djindjic, overriding the edict of a constitutional court and without the approval of President Kostunica. On 3 July, Milosevic appeared before the Tribunal alone, without lawyers. In a deﬁant stance, he said: ‘I consider the tribunal as a false tribunal and indictments false indictments’ and that the trial aim is to provide false justiﬁcation for the war crimes NATO committed in Yugoslavia. He refused to enter a plea of guilty or non guilty, The Tribunal then decided that he had entered a non-guilty plea. Milosevic was charged, originally in three indictments, as a commander and participant in a joint criminal enterprise for the commission of oﬀences said to have been committed in Croatia, Bosnia and Herzegovina, and Kosovo, including crimes against humanity, violations of the laws or customs of war, and, in respect of the population of Bosnia and Herzegovina, genocide. By order of the Appeals Chamber on  February 2002, all three indictments are to be heard in one trial. His trial commenced before Trial Chamber III on 2 February 2002. In its Tenth Annual Report, the Tribunal noted that this was an ‘enormous and complex trial’, requiring careful management by the Trial Chamber to ensure that the rights of the accused are fully protected while fulﬁlling the Tribunal’s obligations to the international community and all parties that the trial be expeditious. While admitting the testimony of witnesses in written form under the Rules, the Chamber has consistently allowed the accused to cross-examine the witnesses on the content of their statements where any issue raised by testimony gives rise reasonably to an issue that the accused has indicated he is contesting. The accused has refused to appoint a defence counsel to assist him, a decision which has been accepted by the Chamber. In practice, he beneﬁts from the advice from two lawyers sitting in the public benches, and verbal or written advice from many sources in Belgrade. In order to assist the Trial Chamber and the accused in the process of defending the broad case against him, the Trial Chamber has ordered the appointment of amici curiae to assist it in a number of areas. A further complicating factor has been the health of the accused, causing the trial to be adjourned on ﬁve occasions. Following specialist advice, regular breaks are provided in the trial schedule to give the accused additional time out of court

The International Criminal Tribunal for the Former Yugoslavia

during the trial to recuperate and prepare his defence. During the reporting period, the Trial Chamber issued 94 written decisions and 207 oral rulings. From February 2002 until end December 2003, the Prosecution has presented 300 witnesses. Milosevic will be entitled to present the same number. He was to start his defence in July 2004. However, at the end of August, the judges ordered a new postponement, new health checks and said that they would consider imposing a defence counsel. Any conviction will have to rest on demonstrating Milosevic’s command responsibility. The prosecutors must prove that he ordered the ethnic cleansing, killings and other atrocities, or that he knew about them and chose not to stop them. The judges must be convinced that Milosevic was not only the end of the Serb military chain of command, but that he was actively in charge. As seen by Bass,9 Milosevic, in brief, ‘swings back and forth between two modes: thundering deﬁance, like Hermann Göring in Nuremberg, and evasion of responsibility, like Adolf Eichmann in Jerusalem’. The villains are the Utasha movement (the Croats), the Islamic fundamentalists (the Bosnian Muslims) and the NATO imperialists. Milosevic insists that the war’s atrocities were faked. The Srebrenica massacre was the work of the French intelligence. The Hague Tribunal is an American court, controlled by the American government. Recent important witnesses for the prosecution have confronted Milosevic. Lord David Owen, former European Union mediator, said in November 2003 that Milosevic was not ‘fundamentally racist’ but he could and should have used his inﬂuence over Bosnian Serbs to stop the war two years before it ended. General Wesley Clark, the former NATO supreme commander of the US and NATO forces which forced Serbian forces out of Kosovo after  weeks of bombing, testiﬁed in December 2003 that Milosevic was ‘the motivating force and the guiding force in most if not all’ of the events in the four Balkan wars in the 990s. He said that Milosevic had told him in a conversation in August 995 that he had known in advance that the Bosnian Serb military leader, Ratko Mladic, had been planning the Srebrenica massacre. He had warned Mladic not to do it. Milosevic replied that this was a ‘blatant lie’. He described himself as an advocate for peace, calling the Tribunal an instrument for war.20 While Milosevic ﬁghts all the legal charges at the Tribunal, his ultimate audience may be the Serbs. On 2 December 2003, the Tribunal decided that Milosevic and Seselj could no longer use telephones or personal visits to contact the media as candidates in Serbia’s parliamentary elections to be held on 28 December 2003, but that they could continue to communicate with their family, legal counsel and diplomatic or consular oﬃcial. The Tribunal’s deputy registrar deemed that the use of its communications facilities by people seeking to participate in these elections could frustrate the Tribunal’s mandate. This was strongly protested by an attorney as a ‘punitive measure’, a violation of the principle of ‘equality of arms’, of freedom of expression, an interference with the Serbian democratic process and a violation of the principle of presumption of innocence.2

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In the Serb elections of 28 December 2003, nationalist parties were the winners. With 27.3 per cent of the votes, the Serb Radical Party became the ﬁrst party of the new Assembly: its leader, Vojislav Seselj, a detainee in The Hague, was elected as the ﬁrst in the electoral list. The Socialist Party of Serbia, led by Milosevic, obtained 7.5 per cent of the votes. More moderate, reformist parties totalled 42 per cent of the votes. Sentencing guidelines Article 24 of the Tribunal’s Statute limits penalties to imprisonment, thus excluding the death penalty. It prescribes: ‘In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the Former Yugoslavia’ and, ‘In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the oﬀense and the individual circumstances of the convicted person’. Article 0 of the Rules of Procedure and Evidence adds that, in determining the sentence, any aggravating circumstances should be taken into account, as well as any mitigating circumstances including the substantial cooperation versus the prosecutors by the convicted person before and after conviction. There are therefore no clear sentencing guidelines, there is no range of possible sanctions for speciﬁc violations of international humanitarian law, such as murder, rape, planning or participation in ethnic cleansing or in a genocide. As shown in the Plavsic case, it seems that the Tribunal gave her credit for her voluntary surrender, for pleading guilty, for expressing remorse and for speaking in favour of reconciliation. Her age was also a factor in a relatively light sentence of  years’ imprisonment. Besides indictments withdrawn and acquittals, sentences rendered by the Tribunal until 3 December 2003 range from three years to life imprisonment. The ﬁrst sentence to life imprisonment was given on 3 July 2003 to Milomir Static, the former mayor of Prijedor in Bosnia, for crimes against humanity and violations of the laws of war, but acquitted of the crime of genocide. In August 200, Radislav Krstic, the Serb general of Bosnia, was found guilty of genocide in Srebrenica and sentenced to 46 years, although the prosecutor had requested life imprisonment. As seen above, two other participants in the Srebrenica massacre, Momir Nikolic and Dragan Obrenovic, who both pleaded guilty, were sentenced respectively 27 and 7 years. The lack of a sentencing scale has been criticized by legal and other observers, who believe that the judges have too much discretion in their sentencing, which may also be an excessive burden on them. The uneven impact of pleabargaining has also be criticized, and judges’ decisions have been called by some observers as arbitrary and incoherent.22

The International Criminal Tribunal for the Former Yugoslavia

Cooperation by governments As the Tribunal has no police force of its own, it depends on the cooperation of states and the Stabilization Force for Bosnia and Herzegovina (SFOR) – formerly from NATO – for arrests, access to documents and compulsory production of witnesses. The cooperation of the governments of the Former Yugoslavia is particularly crucial. In accordance with Article 29 of the Tribunal’s Statute, governments ‘shall cooperate with the Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law’, including the identiﬁcation and location of persons, their arrest or detention, the surrender or transfer of the accused to the Tribunal. None of the three parties involved in the wars which divided Former Yugoslavia is entirely innocent of war crimes and crimes against humanity. However, most victims were found among the Muslims, and most of the perpetrators of violence among mainly the Serbs, and to a lesser degree the Croats. In consequence, the Muslims had most to gain from international criminal justice, while the Serbs and Croats had more to fear from the Tribunal’s investigations and judgments. As a result, the Bosnian Muslim government showed most cooperation with the Tribunal, while Yugoslavia, then Serbia and Montenegro, has consistently rejected the authority of the Tribunal and refused its cooperation. Croat cooperation has increased following the death of Franjo Tudjman in 999. In its Tenth Report, the Tribunal again records that the Federal Republic of Yugoslavia, now known as Serbia and Montenegro, apart from assisting with some voluntary surrenders, has failed to act upon most of the outstanding Tribunal arrest warrants. . There was minimal cooperation at the federal level and the overall assessment is that cooperation is still neither full nor proactive. The Republic of Croatia has a mixed record. Its cooperation with the Tribunal continues to improve, although sometimes selective and slow. Access to diﬀerent archives and documents is improving. Croatian authorities were successful in locating and arresting Ivica Rajic, who had been indicted in 996. Cooperation bertween the Oﬃce of the Prosecutor and the Oﬃce of the State Attorney of Croatia in regard to prosecutions before national courts was progressing. On the negative side, Croatia, which had the responsibility to apprehend only one, well known, indicted person (Gotovina), allowed him to abscond following failed negotiations with him to surrender voluntarily to the Tribunal. Croatian authorities also failed to act immediately upon the issuance of the indictment and arrest warrant against the late General Bobetko, who subsequently died due to poor health. Improved cooperation with the Tribunal was however shown in March 2004 by the voluntary surrender of two retired Croatian generals, Ivan Cermak and Mladen Markac.23 The cooperation of the Federation of Bosnia and Herzegovina remained satisfactory and cooperation with the Republika Srpska improved somewhat in regard to access to documents. However, its authorities failed completely to locate and arrest fugitives.

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The cooperation of Serbia and Croatia has, at times, been ‘forced’ by strong political and/or ﬁnancial pressures by the USA. The European Union also has a lever, albeit less immediate and forceful, by stressing periodically that ‘full cooperation with the Tribunal is essential for further movements towards the European Union’, and that respect for international law is an essential element of the Stabilisation and Association process with the EU.24 NATO’s initial attitude towards the Tribunal was one of non-involvement, to avoid an anti-Serb label, the risks of arrest operations and the fear of adverse reaction of Yugoslavia which might have upset the implementation of the Dayton Accord. While Tony Blair’s government was ﬁrmly behind the Tribunal, Mitterand’s France, because of its historical link with the Serbs, initially adopted an unoﬃcial policy of non-cooperation with the Tribunal. In February 2000, Carla del Ponte had to press France again into greater action, as French troops were still seen as providing a de facto haven for key suspects in their sector. The US have been the best supporters of the Tribunal since its creation in terms of ﬁnancial, logistical, legal and manpower assistance. The present president of the Tribunal is an American national, Theodor Meron.25 Russia had a strong pro-Serb position during the Balkan wars and it initially opposed the Tribunal. This opposition has now subsided. China has had reservations about the Tribunal on the basis that its work was not in compliance with the principle of state judicial sovereignty. It criticized the Tribunal in 2000 as not being ‘a real independent and impartial international justice organ’, which ‘is aﬀected by the international politics too much’.26 Conclusion Assessing the value and merits of the Tribunal would involve verifying whether the objectives of its creation have been met. These are two-fold: – Bring those guilty of war and other international crimes to answer for their actions, and thus fulﬁl moral and legal justice; – Help stabilize the peace in the Former Yugoslavia and eﬀect a reconciliation. While it may still be too early to give a ﬁrm diagnosis, a few comments may be useful. On the positive side, the Tribunal is a real international court, and not a victors’ tribunal as were the Nuremberg and the Tokyo tribunals. Its ‘production’ is impressive in terms of number of indictments, trials, appeals and judgments. The Tribunal has obtained custody of major military and civilian actors, including former President Milosevic, but with the glaring exception of Radovan Karadzic, the former Bosnian Serb leader, and former General Ratko Mladic, the Bosnian Serb Commander. Among other charges, they are accused of genocide for allegedly ordering the massacre of more than 7 500 Muslim men and boys in Srebrenica in 995. It appears that the two men, still considered as heroes in Serbia, are protected by a network of politicians, police-

The International Criminal Tribunal for the Former Yugoslavia

men, gangsters, peasants and Orthodox priests. This ‘unﬁnished business’, for which the Tribunal cannot be blamed, is due to the lack of will on the part of the US, France and NATO, and the refusal of Serb authorities to give any assistance for their arrest.27 The Tribunal’s prosecutors have tried time and again to prod all responsible parties to take eﬀective action, without success. The number of voluntary surrenders and the number of accused pleading guilty have reinforced the legitimacy of the Tribunal. The release or acquittal of a number of accused shows a degree of fairness. The whole judiciary ‘machinery, although slow to start and costly, is in place, including the serving of sentences in seven countries. As noted by Wald,28 the Tribunal has ﬁlled a critical void that no national courts were prepared, able or willing to ﬁll during and in the aftermath of the wars. The Tribunal has developed a substantial corpus of coherent international law on war crimes, crimes against humanity and genocide, which national courts could not do. This includes the innovative decisions regarding the status of rapes, sexual violence, and sexual enslavement as crimes of war and crimes against humanity when committed in the context of a widespread campaign against civilians. The Tribunal has pioneered the creation of procedural rules for an international court composed of judges who speak diﬀerent languages and come from diﬀerent legal cultures: the ICTY Rules of Procedure and Evidence reﬂect a mix of the common law adversarial mode of trial and the civil law inquisitorial mode practised on the European continent. The Tribunal has also produced a protocol for the protection of witnesses. The creation of the Tribunal, its structure, jurisprudence, procedures, the problems it has faced and even its failings have been an essential basis for the drafting of the Statute of the International Criminal Court. The Tribunal’s experience constitutes a major ﬁeld of study and reﬂection for the prosecutors, judges and registry staﬀ of the ICC. On the negative side, Wald has noted criticisms of the Tribunal for being too remote, both in geography from the locale and from the population aﬀected by the wartime violations, and for not including any members of the ethnic groups involved in the Bosnian war as members of the court. The open sentencing practices, with their risk of too wide variations between sentences which may appear arbitrary or unfair, may need to be reconsidered. Although the Tribunal currently refuses to adopt any ‘sentencing tariﬀ ’, listing relevant criteria and past practice would be useful. More fundamental criticisms address the very creation of the Tribunal and its alleged lack of independence. The creation of the Tribunal by the Security Council has been challenged by legal experts on the basis that legitimate international tribunals should only be created through diplomatic negotiations, the approval of a Statute and ratiﬁcation by a set number of states, as in the case of the International Criminal Court. In the Tadic judgments,29 the Appeals Chamber has rebutted this argument: it found that the ‘International Tribunal has been established in accordance with the appropriate procedures under the

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United Nations Charter and provides all the necessary safeguards of a fair trial. It is thus ‘established by law’. Milosevic and others have condemned the Tribunal as a political tool of the Western Powers, or of the US. The charges of war crimes alleged to have been committed by NATO during its bombing campaign in Kosovo raised a major political challenge for the Prosecutor. Her decision to reject an investigation, probably inﬂuenced by non-judiciary constraints, was criticized by legal specialists and human rights groups. Critics have built on this apparent failure to stress that the main ﬁnancing of the Tribunal by the US and other Western Powers could not but aﬀect its impartiality and independence. Fatic30 notes the multiple role of NATO in Kosovo: NATO appears to have played the initiating role for the ICTY by ﬁrst starting the war and then charging the top political and military brass of NATO’s adversary at the height of the conﬂict. NATO played the enabling role by securing access for ICTY investigators and managing Kosovo while investigations take place. Finally, NATO also played the controlling role because its political activity, including oﬃcial statements by its leaders concerning possible indictments and judicial actions, have prejudiced the ICTY’s moves: ‘While the ICTY is theoretically supposed to be independent even of the Security Council in its work, although it is organizationally subordinate to it, it appears to be integrated in the NATO diplomacy’. While this criticism is addressed mainly to the Kosovo situation, the fact that the Tribunal has no police powers has left it dependent on the good, or bad, will of governments and NATO forces to obtain custody of some of the accused. NATO support would not have been necessary if governments had played their role. Secondly, the Prosecutors have demonstrated their independence from governments when reproaching publicly Western governments for their lack of cooperation, or when announcing indictments at times when Western Powers favoured negotiation over justice. The professionalism and independence of the ICTY judges cannot be challenged. As another criticism, Shen3 suggests that the ICTY system is a ‘lopsided one’. Whom to indict, when to indict, and what evidence to collect and use, are all under the control of one single individual, and there is no checking and review mechanism except for the judges of the chambers of the Tribunal who in theory may reject a prosecution. This system is a copy of the domestic system of some States, does not at all reﬂect the nature of the international community, and is inappropriate for international proscution. Indeed, the Chief Prosecutor is too powerful, so powerful that she or he is vulnerable to abusing or misusing her or his power, and so powerful that his or her decision may turn some political leaders in the Balkans down and change the course of history while harboring or neglecting to prosecute true criminals ... Rather, such decisions should come within the powers of a collegial and democratically constituted body of prosecutors, with each prosecutor possessing one and equal voice, on the majority of vote.

The International Criminal Tribunal for the Former Yugoslavia

Indeed, the Prosecutor’s powers are large, but they are not unlimited. Giving primacy to the ICTY over national courts and substantial powers to its Prosecutor were required in the creation of an untested international criminal court in a complex, hostile, war and post-war situation: creativity and a right of bold initiative were pre-requisites to start the Tribunal’s operations against such initial obstacles as lack of funds, lack of political support, slow recruitment and no major suspects in custody. Judges act as controlling counter-powers: current tensions between the prosecution and judges in the Milosevic trial show that the prosecutors’ powers have their legal and judiciary limits. The second objective of the Tribunal’s creation and work, i.e. to assist in the reconciliation of the Balkan nations and populations, can only be indirect: the main work of a tribunal is to render justice. Unfortunately, ethnic hates, assigning responsibility for crimes to other parties, denial of one’s own responsibility appear still prevalent, and nationalistic parties and leaders still hold power or strong inﬂuence in several of the separated countries. The judiciary role of the Tribunal and its conﬁrmation of objective historical facts may play a pacifying role in the middle-term. Some of the victimized populations may start feeling that justice and retribution have ﬁnally come. Bass believes that ‘The tribunal’s most important impact will be not in the legal sphere but in the political one. Success will be measured by how much the enterprise helps sideline dangerous leaders, shame perpetrators and bystanders, and soothe victims. The ultimate objective – which is still in doubt – is less to create some dazzling supranational legal precedents than to demonstrate that administering justice can contribute to reconciliation and moderation, in the Balkans and, by extension, elsewhere as well.32

Many years and new generations brought up within the democratic embrace of the European Union will be needed to uproot the remains of century-old beliefs and more recent tragedies. The ultimate, still uncertain, hope is that the Tribunal’s contribution will serve all these purposes, as a signiﬁcant international judiciary advance, as retribution for criminal leaders and as deterrence for present and future leaders. The pioneering and regional role of the ICTY is to be conﬁrmed and expanded globally by the International Criminal Court. Notes  2 3 4

A ten-day war opposed the Yugoslav army to the Slovene forces. UN Doc. S/994/674. Hazan, p. 68. See Minna Schrag, ‘Lessons learned from ICTY Experience: Notes for the ICC Prosecutor’, 20 March 2003, a contribution to an expert consultation process on general issues relevant to the ICC Oﬃce of the Prosecutor, ICC/OTP 2003.

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5

6

7

8 9 0  2 3 4 5 6 7 8 9 20 2

22 23 24 25 26 27 28

In its resolutions 47/235, 49/242B and 53/22, the General Assembly invited Member States and other interested parties to make voluntary contributions to the Tribunal both in cash and in the form of services and supplies acceptable to the SecretaryGeneral. UN General Assembly resol. 57/288 of 2 February 2003. 2003 data in this section are based on the Tenth annual report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 99, . The largest contributions were from the USA – $6 90 298 -, the UK – $4 63 24 -, the European Commission – $3 3 492 – and the Netherlands, Malaysia, Canada and Italy, more than 2 million. ‘State Department Views on the Future for War Crimes Tribunals’ in The American Journal of International Law, Vol. 96, 2002, pp. 482-484. UN Doc. S/PRST/2002/2. Le Monde,  March 2004. See Marlise Simons article in the International Herald Tribune, 9 November 2003. See Tenth Annual Report, pp. 4 and 9. See Bofaxe No. 238E, 20 March 2003, by Noelle Quénivet, . International Herald Tribune, 4 December 2003. International Herald Tribune,  December 2003. See , 28 October 2003. UN News Center, ‘UN tribunal sentences Bosnian Serb general to 20 years’ jail over role in Sarajevo siege’, 7 January 2004. Details on Milosevic’s arrest and transfer to the Tribunal are in Beigbeder (2002), pp. 69-74. Gary J. Bass, ‘Milosevic in The Hague’, Foreign Aﬀairs,May/June 2003, pp. 82-96. International Herald Tribune, 4 November 2003 and 9 December 2003. UN News Centre, ‘UN war crimes tribunal restricts Milosevic’s phone communications’, 7 January 2004 – Tiphaine Dickson, Attorney, ‘The ICTY Gag Order Against Slobovan Milosevic: Illegal, Illogical and Strictly Political’, , 4 December 2003. Le Monde, 3 April 2003. International Herald Tribune, 2 March 2004. ‘Meeting between Commissioner Chris Patten and ICTY Prosecutor Carla del Ponte’, , 6 March 2003. Theodor Meron was elected president of the Tribunal on 4 March 200. He is a leading scholar on international criminal and humanitarian law. People’s Daily, ‘China Underlines Independence and Impartiality of ICTY’, , 2 June 2000. International Herald Tribune, 23 December 2003. See the Essay by Patricia M. Wald, ‘Punishment of war crimes by international tribunals (International Justice, War Crimes, and Terrorism: the US Record)’, in Social Research, Winter, 2002.

The International Criminal Tribunal for the Former Yugoslavia 29 Beigbeder (2002), pp. 74-76.

30 Aleksandar Fatic, Reconciliation via the War Crimes Tribunal? (Ashgate, Aldershot,

Brookﬁeld USA, Singapore, Sydney, 2000), pp. 04-05. Professor Jianming Shen, St. John’s University School of Law, ‘A Politicized ICTY Should Come to an End’, Kosovo & Yugoslavia: Law in crisis, A presentation of JURIST: The Law Professors’ Network, . 32 See note 9, p. 84. 3

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THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

This ‘twin’ of the International Criminal Tribunal for the Former Yugoslavia (ICTY), born one year later on another continent and in a diﬀerent geographical, historical and cultural context, was however also caused by a major humanitarian crisis which, as for the Yugoslavia wars, the ‘international community’ was unable and/or unwilling to prevent or stop before large casualties and immense suﬀering had occurred. Like the ICTY, the International Criminal Tribunal for Rwanda (ICTR) was created by a resolution of the UN Security Council (Res. 955) adopted on 8 November 994. The Council had determined that the situation in Rwanda – the commission of genocide and other systematic, widespread and ﬂagrant violations of international humanitarian law – constituted a threat to international peace and security, justifying the creation of the Tribunal by reference to Chapter VII of the UN Charter. The Context The genocide, the mass elimination of the Tutsi minority in Rwanda together with the killing of moderate Hutu, started on 2 April 994. It had been triggered on 6 April by the crash of the jet plane carrying the President of Rwanda, Juvénal Habyarimana and his colleague, President Cyprien Ntariyamira of Burundi. All aboard were killed, including several senior members of Habyarimana’s staﬀ and the French air crew The genocide ended on 8 July with the victory of the Rwandan Patriotic Front (RPF), originally based in Uganda and grouping together exiled Tutsi and dissident Hutu and the formation of a new government, replacing the interim Hutu government.2 In a population of seven million before the genocide, the genocide has caused the violent death of approximately 800 000 Rwandans – women, children and men – mostly Tutsi but also including ‘moderate’ Hutus: over three-quarters of the population registered as Tutsi were killed. Victims were treated with sadistic cruelty and suﬀered long unbearable agony. Thousands more were raped, tortured, and maimed for life. About two million, mostly Hutu, were then displaced internally and another two million ﬂed as refugees to neighbouring countries.

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In the words of a US NGO: ‘Rwandans have been through a national nightmare that almost deﬁes comprehension. Theirs is a post-genocide society that has also experienced civil war, massive refugee displacement, a ruthless [post-genocide] insurgency, deep physical and psychological scars that are likely to linger for decades ... and economic ruin so extensive that it is now one of the two leastdeveloped countries in the world’.3 Following the plane crash of 6 April 994, Hutu Power took control in Rwanda. Colonel Theoneste Bagosora, head of administration at the Ministry of Defence, is deemed to have been the leader of the genocide: he has been detained by the Tribunal since January 997. Jean Kambanda, the Prime Minister during the genocide, accepted his responsibility at his trial four years later when he pleaded guilty to genocide. Not only had the genocide been planned in advance, he admitted that ‘there was in Rwanda in 994 a widespread and systematic attack against the civilian population of Tutsi, the purpose of which was to exterminate them. Mass killings of hundreds of thousands occurred in Rwanda, including women and children, old and new, who were pursued and killed at places where they sought refuge: prefectures, commune oﬃces, schools, churches, and stadiums’.4 All Hutu authorities were involved in the genocide. First, the Akazu, the special inner circle of advisors to Habyarimana, most of whom came from the northwestern prefecture or were relatives of his wife. They were the center of political, economic, social and military power in Rwanda. They bankrolled the interahamwe (the youth militia recruited and trained by the late President’s party) and death squads. Then, the newly formed interim government, the military and the politicians worked as one. The elaborate governing structure in Rwanda implemented the genocide with remarkable eﬃciency, assisted by the Rwandan tradition of passive acceptance of authority. At the United Nations, neither the secretariat nor the Security Council took any eﬀective action to prevent or stop the genocide. The Security Council’s incredible and irresponsible decision, during the genocide, was to reduce the size of the UN Mission from 2500 soldiers to 270.5 The UN secretariat’s insistence of being ‘neutral’ between the killers and their victims amounted to appeasement, as in Bosnia. On 4 April 2000, members of the Security Council recognized the UN responsibility for its inability to stop the genocide. They agreed with a ﬁnding of the Report of the Independent Inquiry into the Actions of the United Nations during the 994 Genocide in Rwanda (or Carlsson Report) issued on 5 December 999 according to which: The failure of the United Nations to prevent, and subsequently, to stop the genocide in Rwanda was a failure by the United Nations system as a whole. The fundamental failure was the lack of resources and political commitment devoted to developments in Rwanda and to the United Nations presence there. There was a persistent lack of political will by Member States to act, or to act with enough assertiveness. This lack of political will by Member States aﬀected the response by the Secretariat and decision-making by the Security Council, but was also evident in the recurrent diﬃculties

The International Criminal Tribunal for Rwanda to get the necessary troops for the United Nations Assistance Mission for Rwanda (UNAMIR). Finally, although UNAMIR suﬀered from a chronic lack of resources and political priority, it must also be said that serious mistakes were made with those resources which were at the disposal of the United Nations.6

On behalf of the UN, Secretary-General Koﬁ Annan acknowledged this failure and expressed his deep remorse.7 The US led the Security Council in its inaction. After losing 8 soldiers in Somalia in October 993, the US opposed any attempt by the Council to intervene eﬀectively to stop the killings in Rwanda, which were not to be called genocide. While other institutions and countries are also to blame, the OAU Report aﬃrms that ‘it is indisputably true that no nation did more than the US to undermine the eﬀectiveness of UNAMIR’.8 France, who had given military assistance to the Hutu-led Habyarimana government, was blamed for not having stopped the genocide before it began. From April through July 994, the OAU, like the UN, failed to call genocide by its rightful name and refused to take sides between the genocidaires and the RPF. The OAU Report of May 2000 found that the silence of the Organization and a large majority of African Heads of State constituted a shocking moral failure.9 In recent years, the leaders of the UN, the US, Belgium and the Anglican Church0 have acknowledged their share of responsibility, or apologized for their failure to stop the genocide. No apology has yet come from the French government or the Catholic church. Mandate and Structure The resolution of the Security Council deﬁnes as the sole purpose of the establishment of the Tribunal the prosecution of ‘persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between  January 994 and 3 December 994’. The jurisdiction of the Tribunal extends to genocide, crimes against humanity, and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. Like the ICTY, it has jurisdiction over ‘natural persons’ and has primacy over the national courts of all States. As for the ICTY, the organs of the ICTR are the Chambers, the Prosecutor and the Registry. The original Statute established two Trial Chambers and an Appeals Chamber, composed of  judges: three serve in each of the Trial Chambers, ﬁve serve in the Appeals Chamber. On 30 April 998, a Third Trial Chamber was created by resolution 65 of the Security Council. As a result, the number of judges was increased from  to 4. Three judges sit in each of the Trial Chambers and ﬁve judges sit in the Appeals Chamber which is shared with the ICTY. On 30 November 2000, the Security Council decided unanimously to increase the number of judges of the Appeals Chamber common to the two Tribunals from ﬁve to seven by the election of two additional judges to the ICTR.

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Thereafter, the President of the ICTR will assign two of the eleven judges to sit in the Appeals Chamber. This decision should enable the two Tribunals to expedite the conclusion of their work by 200, as decided by the Security Council. It was also intended to redress the absence of representation by ICTR judges in the Appeals Chamber. The ICTR judges did not, then, request the provision of ad litem judges for their Tribunal, as they were conﬁdent that they could complete a substantial number of the 36 outstanding cases by 2003.2 This optimistic forecast did not come true. By August 200, only 8 sentencing judgments on appeal (ﬁnal judgments) had been rendered by the ICTR, and the Tribunal had only completed two trial cases. 6 trials were in process, ten cases had been assigned to a Trial Chamber but no date had been set, and ten cases had not been assigned to a Chamber. Following a request by the Tribunal on 9 July 200, the Security Council authorized on 4 August 2002 the creation of a pool of 8 ad litem judges for the ICTR, in order to increase the Tribunal’s judicial capacity (Res. 43 (2002)). Budget and stafﬁng

The General Assembly approved, on 27 March 2002, the following net appropriation for the biennium 2002-2003: $77 739 400 (Res. A/56/248B). The budget for 2000 was $79,7 million. 98 staﬀ posts are authorized, ﬁlled by staﬀ from 86 countries. The removal of Carla del Ponte

Carla del Ponte was Chief Prosecutor for both the ICTY and the ICTR since her appointment to that position in September 999, like her predecessors, Richard Goldstone and Louise Arbour. On 28 August 2003, the Security Council decided to split the prosecutorial duties for the ICTY and the ICTR, creating a new position of Prosecutor for the latter, while welcoming the intention expressed by the Secretary-General to submit to the Council the name of Carla Del Ponte as nominee for the post of Prosecutor for the ICTY.3 This decision was justiﬁed in part on legitimate technical grounds: Carla Del Ponte, like her predecessors, was accused of giving priority to the ICTY and neglecting the ICTR. She had spent an average of only 35 days a year in Africa and had left two important posts in her oﬃce vacant for several months, leading to huge delays. One prosecutor for two tribunals seemed inadequate. However, political pressures played a less innocent role in the decision. With the quiet support of the US and the UK, the Rwandan government had campaigned for her removal. Rwanda strongly objected to the decision of Carla Del Ponte in the spring of 2000 to investigate not only crimes committed by the Hutus, but also the retaliatory atrocities committed by the Tutsi-led Rwandan Patriotic Front (RPF) when it took control of the country from the authors of the genocide. According to a report of October 994 by Robert Gersony, an envoy

The International Criminal Tribunal for Rwanda

of the UN High Commissioner for Human Rights, the RPF was responsible for massacres resulting in 25 000 – 45 000 deaths between April and August 994. The report was suppressed by UN authorities, and oﬃcially does not exist. The RPF is also believed to have been responsible for the deaths of at least 200 000 refugees in the Congo in 996 and 997. However, the Tribunal’s mandate is limited to crimes committed in 994.4 In September 2002, Carla Del Ponte formally suspended her investigations of war crimes presumed to have been committed by leaders and members of the RPF. At a tripartite meeting in Washington in May 2003 with US authorities, Rwandan representatives and Carla Del Ponte, an agreement was reached in principle whereby the Rwandan government would take responsibility for the trials, and the ICTR would only intervene if Rwanda was unable to carry them out satisfactorily. With the removal of Carla Del Ponte from the ICTR, it is however most unlikely that the Rwandan government will implement its part of the deal.5 Carla Del Ponte’s successor is Hassan Bubacar Jallow (Gambia), who was appointed by the Security Council by Resolution 505: his four-year term of oﬃce started on 5 September 2003.6 Rwanda’s Relations with the Tribunal While Yugoslavia had opposed the creation of the ICTY, the Tutsi-dominated Rwandan government proposed the creation of an international tribunal by letter to the President of the Security Council dated 24 September 994. On 6 October, the President of Rwanda, Pasteur Bizimungu, urged the UN to establish an international tribunal in his country quickly to bring those responsible for genocide to justice. An international presence would ensure an exemplary justice which would be seen to be completely impartial and fair. The government believed that it was impossible to build a state of law and arrive at true national reconciliation without eradicating the culture of impunity which had characterized Rwandan society. However, Rwanda voted against resolution 955 by which the Security Council established the Tribunal. Its main objection was that the Tribunal’s Statute ruled out capital punishment, which is provided for in the Rwandan penal code. As a consequence, leaders who designed, planned and implemented the genocide would escape the death penalty, while lower-rank perpetrators ‘would be subjected to the harshness of [the death] sentence’. Other objections related to the temporal jurisdiction of the Tribunal, considered too restrictive, and to its composition and structure.7 When the Oﬃce of the Prosecutor, based in Kigali, Rwanda, started its work, it was confronted with a climate of general hostility towards the UN, because of its inaction during the genocide. In 997, the Rwandan government criticized ﬁrmly the Tribunal, and particularly its Prosecutor, (whose judiciary experience in Canada was labelled as ‘leaving much to be desired’) and requested the designation of a Prosecutor exclusively in charge of Rwanda. A 997 report by the UN Oﬃce of Internal Oversight Services (OIOS) had already identiﬁed a number of serious operational deﬁciencies. The Rwandan government criticized the inef-

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fectiveness of the Prosecutor’s oﬃce, the lack of qualiﬁcations or experience of members of the staﬀ, the very disastrous performance of the investigations department, serious internal divisions and tensions within the Tribunal, ad hoc investigations and indictments, the fact that after two years of work, only one trial had started and that the majority of indicted suspects had been low level functionaries and small time businessmen. Too much time and too many resources were wasted to carry out investigations abroad and not in Rwanda. The Tribunal should cease its policy of hostility toward the government of Rwanda.8 The Deputy Prosecutor, Bernard Muna, attempted to improve relations with the authorities. In July 998, Vice-President Kagame declared that his government and the Tribunal were ‘partners’. He congratulated the Tribunal for the important progress accomplished in diﬃcult circumstances and promised to give it all necessary assistance. However, when the ﬁrst sentence was pronounced by the ICTR in September 998 – Jean Kambanda, sentenced to life imprisonment – Gérald Gahima, Secretary-General of the Ministry of Justice declared that if Rwanda had received one-twentieth of the sums given to the Tribunal, Rwanda ‘would have much advanced towards the solution of its problems’. As another set-back, a meeting between senior oﬃcials of the Rwandan government, Judge Navanethem Pillay, President of the Tribunal and Adama Dieng, ICTR Registrar, which was to be held early in December 2002 in Arusha, was postponed indeﬁnitely by the Rwandan delegation. In a press statement issued on  December 2002, Pillay expressed regret that the meeting was cancelled, as the visit would have given the delegation an opportunity to observe the trials in progress and discuss issues of mutual concern to the two parties. Pillay added: Rwanda, like all UN Member States, must recognize the independence of the Tribunal. Nonetheless, it is the country with which we are the most closely concerned and it is therefore unfortunate that since the establishment of the Tribunal, no member of the Rwandan government has made an oﬃcial visit to this institution. A delegation of judges of the Tribunal visited Rwanda in June 200 and the dialogue we had on this occasion greatly helped us to understand the concerns of the government and people of Rwanda.

Pillay noted that the Tribunal’s relations with Rwanda in 2002 had ... [s]adly deteriorated to the point where two trial chambers were obliged to remind the Rwandan government of its legal obligation of cooperation with the Tribunal, in particular with regard to the transfer of witnesses from Rwanda to give evidence in the trials.

According to Internews,9 the following issues had aﬀected the working relationships between the ICTR and the Rwandan government in 2002: – new immigration regulations imposed by Rwanda on witnesses seeking to travel to Arusha to testify; – the alleged employment of genocide suspects by the Tribunal; – delayed appointments for key vacant positions in the Tribunal; – witness protection;

The International Criminal Tribunal for Rwanda

– the Prosecutor’s investigations into crimes allegedly committed by the Rwandan Patriotic Army during and after the genocide. Other constant grievances on the part of the Rwandan government include the lack of the death penalty in the Tribunal’s Statute, and, as quoted by Uvin and Mironko,20 ‘the dramatic imbalance between the extreme evil of the genocide and the reﬁned judicial treatment aﬀorded the detained leaders of the genocide’. The Tribunal’s geographical site in Arusha and its fair, but slow and complex procedures have not helped the Rwandans to understand and appreciate its work.2 The Tribunal’s Performance Presentation 4. gives an historical sequence of the Tribunal’s activities since its creation until January 2004. A slow process

The ﬁrst judgment of a Trial Chamber took place on 4 September 998, almost four years after the Tribunal’s establishment, followed by a second judgment on 2 October 998, involving two accused. Five accused were sentenced in 999, two in 2000 and only one in 200 and in 2002. Finally, in 2003, the Tribunal sentenced eight accused. Appeal judgments took place in 2000 (three accused), in 200 (four accused) and in 2003 (one accused). To explain this slow start and low productivity, the Eighth annual report of the ICTR for  July 2002 to 30 June 200322 listed the following challenges faced by the Tribunal: the complexity of the cases, the need for voluminous disclosure and translation of documents, transport of witnesses from all parts of the world, unavailability of witnesses and the need to interpret testimony between English, French and Kinyarwanda. These technical reasons are no doubt valid, but they omit more substantial problems, which include earlier administrative and management problems, and the issue of strategy options. As for the ICTY, there were initial ﬁnancial and staﬃng shortages. The ﬁrst courtroom was only completed in November 996. In contrast with the ICTY, the ICTR’s location in a small, poor and remote African country added to staﬀing and material problems. Judges were blamed for taking extended holidays: according to a 998 study by Amnesty International, the Tribunal had suspended its work during four months over a one-year period.23 Mismanagement has been a serious problem for the ICTR, not shared by the ICTY. A report by the UN Oﬃce of Internal Oversight Services (OIOS) issued on 6 February 997 found that the Tribunal was suﬀering from serious operational deﬁciencies which developed from its inception. Rumors of chronic corruption, nepotism and systematic discrimination against non-Africans led to the

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resignation of the ﬁrst Deputy Prosecutor and the Registrar and the replacement of administrative oﬃcers.24 Another OIOS report issued on 23 September 999 showed that the Tribunal had satisfactorily implemented a number of previous recommendations and made improvements in ﬁnancial management and ﬁlling vacant positions. However, improvements were still needed in various administrative areas.25 In a report issued in 200, the International Crisis Group (ICG) sharply criticized the slow pace of the Tribunal.26 In a further report of 2003,27 the ICG recognized that the Tribunal had become more pragmatic with respect to three challenges: First to organize a program of investigations that would give it a realistic chance to ﬁnish all its initial proceedings by 2008. Secondly, to set up a time-table for cases that reﬂected its priorities, including the need for greater eﬃciency. Thirdly to resist pressure from the Rwandan government, which was attempting to stymie any possibility that members of the Rwandan Patriotic Army would be tried.

However, the ICTR would still need to be ‘a good deal more eﬃcient in handling trials’. It should maintain its priority of judging the main suspects from the army and 994 government. The Tribunal’s strategy

The ICTR has indeed suﬀered from the initial priority given by the Prosecutors to the ICTY. The ﬁrst Prosecutor, Richard Goldstone, had encouraged the Deputy Prosecutor to focus on national ﬁgures, a strategy which was not properly applied by the latter. The strategy of focusing on the architects and leaders of the genocide – the ‘big ﬁsh’ as opposed to relatively ‘small fry’, was only applied in 997. In the same year, Louise Arbour proposed to the judges to have a joint trial of 29 accused persons, with all the senior political, military, economic or media leaders with Theoneste Bagosora in its center, as the genocide should be considered as a ‘common criminal enterprise’. Her initiative was rejected by the judges on technical grounds.28 As shown on Presentation 4., joint trials, with a smaller number of indicted suspects, only started in 999, and more signiﬁcantly in 2003. Joint trials accelerate the judiciary process by avoiding lengthy trials of single individuals and potential repetition of the same events. The Prosecutor should complete all his investigations by the end of 2004 and the ICTR, like the ICTY, should complete all trials at ﬁrst instance by the end of 2008, and complete all work in 200, as instructed by the Security Council on 28 August 2003 (Res. 503 (2003)). Like the ICTY, the ICTR will transfer cases to national courts for trial, in order to concentrate on trying a limited number of the most important cases. The Prosecution has identiﬁed 40 suspects whose prosecution is intended to be deferred to national jurisdictions. Of these persons, 5 are in countries that have adopted the principle of universal jurisdiction. The other 25, who did not hold high positions of responsibility during the genocide, could be transferred to the Rwandan authorities, on the condition that the death penalty not be imposed.29

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Presentation 4.1 Sequence of ICTR activities November 1994-January 2004 (Titles refer to either former Ministers of the interim government of Rwanda in 994, or former oﬃcials, or other former functions) 8 November 994 9 November 994 27 June 995 2 December 995 30-3 May 996  October 996 4 September 998

2 October 998

5 February 999

2 May 999

4 June 999 5 September 999 3 November 999

6 December 999

Tribunal created by Security Council Richard Goldstone assumes functions of Prosecutor of the ICTR Laity Kama (Senegal) elected President First public indictment of an unnamed accused Initial appearance before the Tribunal of three suspects: J.P. Akayesu, G.A.N. Rutaganda, C. Kayishema Louise Arbour succeeds Goldstone J. Kambanda, Prime Minister life sentence for genocide and crimes against humanity conﬁrmed in appeal on 9 October 2000 J.P. Akayesu, mayor three life sentences for genocide, and crimes against humanity conﬁrmed in appeal on  June 200 O. Serushago, businessman/militia leader sentenced to 5 years for genocide and crimes against humanity appeal dismissed on 4 February 2000 Joint trial C. Kayishema, préfet life sentence for genocide O. Ruzindana, businessman sentenced to 25 years’ jail for genocide both conﬁrmed in appeal on  June 200 Navanethem Pillay succeeds Kama as President Carla Del Ponte succeeds Arbour J.B. Barayagwiza, Director, Political Aﬀairs Ministry of Foreign Aﬀairs indictment quashed in appeal overturned on 3 March 2000 G.A.N. Rutaganda, businessman life sentence for genocide and crimes against humanity genocide conviction conﬁrmed in appeal on 26 May 2003 war crimes conviction added

Transferred to Mali

Transferred to Mali

Transferred to Mali

Transferred to Mali Transferred to Mali

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27 January 2000

 June 2000 7 June 200 7 March 2002 2 April 2002

9 February 2003

5 May 2003 5 May 2003 3 June 2003 5 September 2003 6 November 2003

A. Musema, factory director Transferred to Mali life sentence for genocide and crimes against humanity conﬁrmed in appeal on 6 November 200 G.H.J. Ruggiu, radio journalist sentenced to 2 years’ jail for genocide and crimes against humanity (ﬁnal) I. Bagilishema, mayor acquitted: not guilty conﬁrmed in appeal, 3 July 2002 S. Imanishimwe, Lieutenant acquitted of charge of conspiracy still faces other charges Joint military trial opens: T. Bagosora, Director of Cabinet in Ministry of Defence A. Nsengiyumva, Lieutenant-Colonel A. Ntabakuze, Major G. Kabiligi, Chief, Military Operations Joint trial G. Ntakirutimana, Medical Doctor sentenced to 25 years’ jail for genocide and crimes against humanity E. Ntakirutimana, 7th-day Adventist Pastor sentenced to ten years’ jail E. Niyitegeka, Minister of Information life sentence for genocide and crimes against humanity L. Semanza, mayor sentenced to 25 years’ jail for complicity to genocide and crimes against humanity Erik Mose succeeds Pillay as President Hassan Bubacar Jallow succeeds Carla Del Ponte Joint trial of four Ministers starts (Government II case) C. Bizimungu – Health J. Mugenzi – Trade and Industry J. Bicamumpaka – Foreign Aﬀairs and Cooperation P. Mugiraneza – Civil Service Jointly accused of genocide and crimes against humanity

The International Criminal Tribunal for Rwanda 27 November 2003

Joint trial of four Senior Government Ofﬁcials starts (Government I case) E. Karemera, Minister of the Interior A. Rwamakuba, Minister of Primary and Secondary Education M. Ngirumpatse, Director General for Foreign Aﬀairs J. Nzirorera, Minister of Industry, Mines and Handcraft and functions in the Mouvement Démocratique Républicain and functions in the Mouvement Démocratique Républicain  December 2003 J. Kajelijeli, mayor life sentence for genocide and extermination as a crime against humanity 3 December 2003 Joint trial: the media case F. Nahimana, founder of Radio TV des Mille Collines (RTLM) life sentence for genocide, crimes against humanity H. Ngeze, newspaper editor life sentence for genocide and crimes against humanity J.-B. Barayagwisa, Director of Political Affairs, Ministry of Foreign Aﬀairs, no. 2 in RTLM sentenced to 35 years’ jail for his role in RTLM and acts of genocide 22 January 2004 J. de Dieu Kamuhanda, Minister, Culture and Education life sentence for genocide and crime against humanity Source: ICTR Press Releases and ‘ICTR Detainees – Status on 25 January 2004 http://www.ictr.org/ENGLISH/factsheets/detainee.htm Achievements

The ICTR rendered its ﬁrst judgment on 2 September 998 in the case of JeanPaul Akayesu, former bourgmestre (mayor) of Taba.30 He was found guilty of Genocide, Direct and Public Incitement to Commit Genocide and Crimes against Humanity (Extermination, Murder, Torture, Rape, and Other Inhumane Acts). For the ﬁrst time, the Genocide Convention of 948 was interpreted by an international tribunal, which formally conﬁrmed that the 994 massacres were a genocide. The Chamber deﬁned the crime of rape

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Chapter 4 [a]s a physical invasion of sexual nature, committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact ... Threats, intimidation, extortion and other forms of duress which prey on fear or desperation could be coercion.

The Court held that sexual violence was an ‘integral’ part of the process of destruction of the Tutsi ethnic group. On 2 October 998, the accused was given three life terms for genocide, incitement to commit genocide and crimes against humanity relating to extermination. He was also sentenced to 5 years each on four separate counts of crimes against humanity related to murder and rape and ten years for separate counts of crime against humanity related to torture and other inhumane acts. On  June 200, the Appeals Chamber dismissed appeals by the defence and aﬃrmed decisions of the Trial Chamber.3 The Tribunal has judged and sentenced Jean Kambanda, Rwanda’s Prime Minister and Head of the Interim Government during the genocide. He pleaded guilty to charges of genocide, the ﬁrst confession of genocide) and crimes against humanity and was sentenced to life imprisonment on 4 September 998. His appeal was dismissed on 9 October 2000. The Tribunal is also holding and will judge other senior political leaders and military oﬃcers charged with playing major roles in planning and implementing the genocide. Among the detainees on trial in 2004: The President of the National Assembly, the Ministers of Foreign Aﬀairs, Health, Interior, Commerce, Civil Service, Finance, Transport, Family and Women Aﬀairs, Education of the Interim Government. Already tried and sentenced, the Minister for Culture and Education, and the Minister of Information, and other senior Ministry oﬃcials or Préfets. Among the senior military oﬃcers being tried: the Chief of Staﬀ of the Rwandan Army, a Brigadier-General, Lieutenant-Colonels, the Chief of Staﬀ of the Gendarmerie Nationale. The trial of Colonel Theoneste Bagosora, former Director of Cabinet in the Ministry of Defence, Lieutenant-Colonel A. Nsengiyumva, Major Aloys Ntabakuze and Brigadier-General Gratien Kabiligi, which started in April 2002, will deal with issues concerning how the genocide and related crimes were allegedly planned and implemented at the highest levels of the Rwandan army at the time. Other detainees or sentenced accused include religious leaders, journalists and radio managers, businessmen. Ruggiu, a former journalist, was sentenced to 2 years in jail in 2000, another journalist, Ngeze, was condemned to a life term – two activists of the Radio Télévision Mille Collines, Nahimana and Barayagwiza, respectively to a life term and to 35 years’ jail. They were all convicted for genocide and crimes against humanity by urging their Hutu readers or listeners to murder Tutsi and helping to locate victims. Julius Streicher, a Nazi leader and journalist had been condemned to death by the Nuremberg Tribunal for his vio-

The International Criminal Tribunal for Rwanda

lent incitement to the persecution and extermination of the Jews in Der Stürmer, the periodical he founded. Enforcement of sentences

Under the Rules of the ICTR, when an individual has been convicted of one or more of the crimes falling within its mandate and sentenced to a term of imprisonment, the sentence is served in Rwanda or in the prisons of a State which has indicated its willingness to accept convicted persons for that purpose. Sentences are served under the supervision of the Tribunal. Early in 2004, six prisoners, including Jean Kambanda, were serving their sentences in Bamako, Mali. Other countries which have entered such agreements include Benin, Swaziland and France.32 National Justice While the ICTR was to judge the main organizers and perpetrators of the genocide and other crimes, the Tutsi-dominated government which came into power after the genocide was faced with the awsome challenge of rendering fair justice to others who participated, at various levels, in the massacres. The genocide of the Tutsi and the later exodus of part of the Hutu population had led to the breakdown of law and order and the near total destruction of the judiciary system. Although Rwanda was ill-prepared and ill-equipped to fairly identify, prosecute and judge all the actors of the genocide, if only because of their numbers, the new authorities initially jailed approximately 25 000 suspects in overcrowded prisons, waiting to be judged. On 30 August 996, the legal framework for the prosecution of the perpetrators of genocide was set up, with the promulgation of the Organic Law No. 08/96 ‘on the Organization of Prosecutions for Oﬀences constituting the Crime of Genocide or Crimes against Humanity committed since October , 990’. The law established specialized chambers within the Tribunals of First Instance and Military Courts. The death penalty remained included among the sanctions. It provided inter alia for: – the classiﬁcation of degrees of responsibility for the perpetrators of genocide into four categories, with only category one, which includes planners and organisers of the genocide potentially liable for the death penalty, if found guilty; – the establishment of a confessions and guilty plea programme for which all defendants, except those in category one, would be eligible, with marked reduction of sentences. On 28 September 996, 20 Supreme Court judges, 29 Appeal Court judges and 200 public prosecutors and magistrates were sworn in after undergoing a sixmonth training. The ﬁrst domestic genocide trials began in late 996. At the end of 200, approximately 6 500 genocide suspects had been judged. As of late

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2002, approximately 5 000 were still in jail. At the rate of  000 verdicts annually, it would take a century to end all cases, an absurd and unacceptable time lag. Rwandan tribunals are overwhelmed with cases, they lack legal and material resources, judges and lawyers lack experience, they work under the pressures of the political-military power and under popular pressures. The Rwandan government then decided to add to the regular justice system the traditional, participatory form of justice known as the gacaca courts. The gacaca courts

On 26 January 200, the ‘Organic Law for the Creation of Gacaca jurisdictions for the Prosecution of Oﬀences constituting the crime of genocide or crimes against humanity committed between  October 990 and 3 December 994’ was adopted by the Rwandan Parliament. Its preamble recalls the need, in order to obtain reconciliation and justice in Rwanda, to eradicate for ever the culture of impunity and to adopt measures ensuring the prosecution and judgment of the perpetrators and their accomplices without aiming only at a simple repression but also at the rehabilitation of the Rwandan society. Sanctions should allow those condemned to make amends and to facilitate their re-insertion into the Rwandan society without hampering the population’s normal life. Gacaca therefore allows for the input of all Rwandese who lived through the genocide. It oﬀers a means by which they can collectively acknowledge and condemn the genocide. Besides sanctioning active perpetrators and supporters of the genocide, it should open a path towards atonement, through truth-telling, for witnesses who were either unable or unwilling to try to prevent exactions and killings. For the perpetrators, there is the opportunity to confess and ask for forgiveness for their crimes. The scheme’s ultimate objective is to reconcile and restore unity among Rwandans by public acknowledgement of guilt and innocence. It stresses community participation over legal procedure and adds a signiﬁcant degree of restorative justice. Traditionally, gacaca was a method of arbitration between families, when wise men would sit together and settle minor civil disputes or infractions, out of ordinary courts. Gacaca courts are diﬀerent insofar as they deal with criminal, not civil, cases, directly linked with the 994 genocide and as they attempt to achieve reconciliation on a national basis, not only locally between families. As in traditional gacaca, judges are supposed to be Rwandan adults of ‘integrity’ elected by the population provided that they meet the following conditions: – to be of good morals and life – to always tell the truth – to be honest – to be known by a spirit of dialogue – not to have been condemned to a 6-month sentence at least – not to have participated in the genocide or crimes against humanity – to be exempt from a spirit of sectarism or discrimination. Civil servants, politicians, military personnel, police staﬀ, and judiciary personnel are not eligible. The law provides for the creation of approximately 0 000 gacaca jurisdictions – one in each cell, sector, district, and province in the country.33 Each jurisdiction has three organs: a general assembly (the entire population of

The International Criminal Tribunal for Rwanda

the cell, sector, district, or province), a seat (9 elected judges), and a coordinating committee. Proceedings begin by listing every victim and criminal act committed in the area. Then the cases for each suspect are debated, based on testimonies from the assembly and information prepared by the public prosecutors. Parties may not call on legal counsel for help. The seat then reaches a verdict, which can be appealed at the next level. Crimes in category  (as deﬁned in the 996 Law), which carry the death penalty, are tried in the formal justice system, not in gacaca courts. The law also provides for regulations on compensation and reparation. The ﬁrst gacaca courts started work in 2002. More than 200 000 judges were elected on 4 October 200. They were entitled to six days of training. They are not entitled to pronounce the death penalty. The whole process is supposed to last four to ﬁve years, but may last longer. In October 2000, the radical exiled opposition party, ‘Rally for the Return of Refugees and Democracy in Rwanda’ (RDR) based in Montreal, strongly protested against the widespread use of gacaca courts.34 The RDR said that the government-run courts imposed on the parties, headed by non-democratically elected judges with no qualiﬁcations in law, empowered to hear serious criminal matters as crimes against humanity and to impose jail terms, have nothing traditional at all and constitute a mockery of justice.

The RDR also criticized the overcrowding of the state prisons, resulting from the massive arbitrary arrests and prolonged illegal detentions of the citizens, the majority of whom are political prisoners and persons whose properties are illegally occupied by RPF members and sympathisers. By the end of 998, more than 5 000 detainees had already died in state prisons and more than 50 000 are languishing in jails since 994.

While some of these criticisms are valid, the RDR seems to ignore the need to prosecute those responsible for the genocide and oﬀers no alternative to the gacaca scheme. The NGO ‘African Rights’ has published a report on gacaca justice in January 2003.35 The report suggests that the gacaca [j]udges are a very mixed group. They include natural community leaders, calculated, articulate and committed; cynical individuals seeking to exploit the system; and people who have been pressured into taking part for want of other candidates. They also include a relatively high level of illiterate or semi-literate people who, even if they are keen, will struggle to remember the information about the gacaca law and the responsibilities that they were given at the training. Moreover, as the elected representatives of their communities, the judges often stand for the attitudes of local residents. In those areas worst aﬀected by the genocide ... it is not impossible that the guilty may be judged by their accomplices ... Some judges clearly lack the character or

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the education to properly implement gacaca and all, at this point, lack suﬃcient training ... their credibility [of the gacaca judges] remains to be established ... Detainees, probably including innocent people, have been awaiting judgments for long periods in diﬃcult conditions while their families endure their absence. Both they and their families anticipated that gacaca would accelerate the pace of justice; unless it does so they will become demoralized and their initial support of gacaca is likely to wane. This must be balanced against the reality that the scale and novelty of the project make it a huge logistical challenge.

Also in January 2004, the Rwandan government has acknowledged that only 3 per cent of the pilot gacaca courts had even ﬁnished the pre-trial phase (in which judges compile lists of victims and accused, listen to witness testimonies, and prepare indictments). At that date, no trials had begun and the target date to expand gacaca nationwide was extended repeatedly. Facing the legacy of mass participation in the genocide, the government was allegedly ready to admit that a partial amnesty was unavoidable, in order to allow the country to move forward.36 Conclusion As for the ICTY, an assessment of the value and merits of the ICTR would involve verifying whether the main objectives of its creation have been met: – the prosecution of persons responsible for genocide and other serious violations of international humanitarian law in 994, its ‘sole purpose’ according to Resolution 955 (994) of the Security Council; – its contribution to national reconciliation and the restoration and maintenance of peace. The ﬁrst objective now appears to be in sight, after many years of procrastination and impotence. The Tribunal has in custody most of the Ministers in the government in oﬃce during the genocide (the interim government) and has started judging them. It has also judged and holds a number of other persons directly responsible for the planning and implementation of the genocide. However, the Tribunal is unlikely to judge members of the RPF for atrocities committed after the genocide, for purely political reasons: this raises the issue of the Tribunal’s independence from governments, as for the ICTY. The second subsidiary objective of reconciliation and peace is not within the power of the Tribunal and it is most unlikely that the Tribunal’s work will have any positive eﬀect in this direction. On the positive side, as noted by Magnarella,37 the ICTR can be credited for a number of judiciary ‘ﬁrsts’. It is the ﬁrst international court to apply crimes against humanity to a non-international conﬂict and to enforce Common Article 3 of the Geneva Conventions and Protocol II. On  May 998, the Tribunal recorded the ﬁrst guilty plea on a count of genocide, that of Jean Kambanda. In pleading guilty, Kambanda conﬁrmed that a genocide occurred in Rwanda

The International Criminal Tribunal for Rwanda

in 994 and admitted that it was planned and organized at the highest levels of government. The Akayesu case was the ﬁrst trial before an international tribunal of someone charged with genocide and it was the ﬁrst trial in which an international tribunal conceptualized sexual violence as an act of genocide. It gave a method to determine an individual’s genocidal intent and oﬀered deﬁnitions of rape and sexual violence under international humanitarian law. On the negative side, the ICTR proved to be the ‘poor relative’ of the ICTY in its slowness to start prosecutions and trials. The reasons for the Tribunal’s slow pace are well-known: the relative isolation in a small African country, the need to build from nothing a working international court, initial lack of support from African and European governments, lack of assistance from the UN headquarters, serious management problems, lack of interest by the international media, the hiring of incompetent or corrupt staﬀ, the neglect by the successive Prosecutors, common to both Tribunals, who gave priority to the ICTY. The Tribunal is still confronted with many problems, some of them well beyond its powers and competence. There is a statutory limitation which keeps the Tribunal from investigating crimes committed beyond 3 December 994, even though these crimes may be connected with the genocide. The Tribunal has faced major political obstacles in pursuing the Prosecutor’s intention to indict members of the RPF against whom evidence of atrocities is established. Such investigations are however required in order to show that the Tribunal is not only prosecuting Hutu leaders, although they planned and carried out the genocide. The charge of ‘victors’ justice’ could be made against the ICTR if it has to bow to the pressures of the present Rwandan government to maintain the immunity of the Tutsi leaders. At the same time, it should be recognized that any government in power after such a major, man-made, humanitarian disaster as the genocide of about 800 000 victims in a country of seven million inhabitants is facing almost impossible challenges. The ICTR and the government’s ﬁrst and foremost task is to identify and punish the perpetrators. The ICTR has the somewhat easier task to try only those persons most responsible for genocide and other violations of international law, senior politicians, senior military oﬃcers and others, in a relatively small number. On the other hand, the genocide was committed by many thousands of Rwandans, possibly several hundreds of thousands. The government has jailed more than 00 000 persons, jailed in inhumane conditions, most of whom have now been jailed for many years. National Rwandan courts, even with well-trained judges and prosecutors and adequate physical facilities could not possibly deal with such an enormous number of cases. The gacaca scheme, in spite of all its judiciary imperfections, is a brave attempt to reach many of those in detention and make some decision as to their fate, and to work towards reconciliation. The political/ethnic situation in Rwanda cannot be ignored: the Tutsi-dominated government wants unity and reconciliation between the Hutu – who on the whole have carried out a genocide – and the Tutsi, who have been the vic-

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tims. The government is imposing its Tutsi rule over a Hutu majority of 85 per cent of the population. In the presidential elections held on 25 August 2003, Paul Kagame won 95 per cent of the votes and was elected President for seven years. His opponent, Faustin Twagiramungu, obtained 3.7 per cent: his party had been banned, his campaign leaﬂets seized, and his supporters were ‘terriﬁed’.38 The RPF dominates all the levers of power: the government, the military and security services, the bureaucracy, the judiciary, banks, universities. The government silences critics by mentioning the genocide and accuses them of stirring ethnic hatred: critics are often arrested. The RPF obtained the absolute majority in the September 2003 parliamentary elections. The case of Rwanda poses the problem of how to deal with the aftermath of mass violence and executions committed by a large number of the population against a minority, to which there is no good solution, which would satisfy the requirements of justice, human rights and humanitarian law. At the international level, trial by an international tribunal of the senior political and military leaders mainly responsible for the genocide is, in principle, a rational solution. Its judgments address the need for justice against perpetrators at the highest levels of government, and may deter other leaders in other countries. However, there is no evidence that the Tribunal will contribute to the reconciliation of the Rwandan population: reconciliation is a political, not a judiciary, function. At the national level, the number of suspects is such that any justice system would fail to deal fairly and eﬀectively with such a situation. The use of gacaca, an imperfect system, attempts to remedy the slow pace of proper national justice, although there are doubts about the viability of this process and its ultimate success. In spite of the imperfections of both the ICTY and the ICTR, they have contributed to the erosion of the impunity of top leaders and to the veriﬁcation and recording of historical facts. Following the victors’ justice of the Nuremberg and Tokyo tribunals, they have made international criminal justice a reality, albeit an imperfect and temporary reality. Their creation, functioning and jurisprudence have made an essential and signiﬁcant contribution to the drafting of the Statute of the International Criminal Court. The experience slowly and, at times, painfully gained by the two Tribunals also constitutes an extended source of reference for the prosecutors, judges and registrar of the Court. Notes 

2

According to a report of 30 January 2004 by French judge Jean-Louis Bruguière, published by Le Monde of 0 March 2004, the plane had been destroyed by two RPF rockets, by decision of Paul Kagame. Kagame has denied this allegation. The information and assessments in this section are based on the report entitled Rwanda: The Preventable Genocide, called OAU Report hereunder, submitted on 29 May 2000 by an International Panel of Eminent Personalities mandated by the Organ-

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3 4 5 6

7

8 9 0  2 3

4 5 6

7 8

9 20 2 22

ization of African Unity, supplemented by other references. The Panel’s mandate was ‘to investigate the 994 genocide in Rwanda and the surrounding events in the Great Lakes Region ... as part of eﬀorts aimed at averting and preventing further wide-scale conﬂicts in the ... Region’. Panel Members were the former Presidents of Botswana and Mali, the Chairperson of the Swedish Committee for UNICEF, a former Liberian Government Minister, a former Chief Justice of the Supreme Court of India, a former Algerian Ambassador, a former Canadian Ambassador and Permanent Representative of Canada to the UN. See . US Committee for Refugees, ‘Life After Death’, quoted in para. 7. of OAU Report. ICTR Judgement 97-23-S, quoted by the OAU Report, para. 4.4. Security Council res. 872 of 5 October 993 and 92 of 2 April 994. The Security Council approved the initiative of the Secretary-General to set up the Inquiry. Members were Ingvar Carlsson (former Prime Minister of Sweden), Professor Han Sung-Joo (former Foreign Minister of the Republic of Korea) and Lieutenant-General Rufus M. Kupolati (rtd)(Nigeria). See . UN Secretary-General, ‘Statement on Receiving the Report of the Independent Inquiry into the Actions of the United Nations during the 994 Genocide in Rwanda’, Press Release SG/SM/7263-AFR/96, 6 December 999. Para. 2.4. Para. 5.87. The Archbishop of Canterbury apologized on behalf of the Anglican church. More details and references are given in Beigbeder (2002), pp. 98-04. Doc. ICTR/INFO-9-2-253.EN, 5 December 2000 and res. 329. Resolution 503 (2003) was approved unanimously by the Council. It amends, in part, Article 5 of the Rwanda Tribunal’s Statute and replaces it with the provision set out in Annex I to the Resolution, creating the new post and describing the process of appointment. The Economist, 23 August 2003. ‘The International Criminal Tribunal for Rwanda: Time for Pragmatism’, Africa Report No. 69, 26 September 2003, International Crisis Group. Prior to his appointment, Mr Jallow was permanent Judge at the Special Court for Sierra Leone. He served as Gambia’s Attorney-General and Minister of Justice fom 984 to 994 and later as a Judge in The Gambia’s Supreme Court. Beigbeder (999), p. 74. Undated report (probably 997) ‘The position of the Government of the Republic of Rwanda on the International Criminal Tribunal for Rwanda (ICTR), . ‘ICTR-Rwanda meeting postponed’, . ‘Western and Local Approaches to Justice in Rwanda’, Peter Uvin & Charles Mironko, in Global Governance, Vol. 9, No. 2, Apr-June 2003, pp. 29-23. A. Des Forges, Aucun témoin ne doit survivre, Le génocide au Rwanda (Ed. Karthala, Paris, 999), pp. 865-867. UN Doc. A/58/40, S/2003/707,  July 2003. paragraph 4.

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23 Amnesty International, ‘International Criminal Tribunal for Rwanda, Trials and Trib-

ulations’, April 998.

24 Beigbeder (999), pp. 78-80.

25 UN Doc. A/52/784, 6 February 998, p. 2 – paras.  and 2 – A/54/393, 23 Septem-

ber 999, paras. 70, 7 and 89 – A/C.5/54/SR.22,  February 2000, para. 26.

26 See www.crisisweb.org/projects/showreport.cfm?reportid=304, 7 June 200. The

27 28 29 30 3

32 33 34 35 36 37 38

ICG is a private, multinational organization committed to strengthening the capacity of the international community to anticipate, understand and act to prevent and contain conﬂict. ‘The International Criminal Tribunal for Rwanda: Time for Pragmatism’, ICG Africa Report No. 69, 26 September 2003. Le Monde, 7 February 2004. UN Doc. A/58/40-S/2003/707, par. 9, 0. On the Status of ICTR Detainees, see . Press Release ICTR/INFO-9-2-38, 2 September 998 – IHT, 3-4 October 998. See also 54th General Assembly, p. 274 – Press Release ICTR/INFO-9-2-269.EN,  June 200. Press Release ICTR/INFO-9-2-340.EN, 4 March 2003. See P. Uvin & Ch. Mironko, op.cit., pp. 29-23. ‘Exiled opposition protests against use of informal courts in Rwanda’, . African Rights, ‘Rwanda: Gacaca justice – a shared responsibility’, 23 January 2003, . See Justice Memo, 7 April 2004, . Paul J. Magnarella, Justice in Africa, Rwanda’s Genocide, Its Courts, and the UN Criminal Tribunal (Ashgate, Aldershot, UK, 2000) The Economist, 30 August 2003. Le Monde, 7 November 2003.

CHAPTER 5

MIXED NATIONAL-INTERNATIONAL TRIBUNALS

It appears that the experimental, temporary International Criminal Tribunals for the Former Yugoslavia and for Rwanda will not have successors, in the foreseeable future, in the same format. It is unlikely that the Security Council, now suﬀering from ‘tribunal fatigue’, will create any new such tribunals in part for political reasons: under what circumstances would the permanent members of the Council ﬁnd a consensus to set up a new ad hoc international tribunal? The rejection of this solution by the US for the trial of Saddam Hussein and other Iraqi leaders is a sign that there would be many political obstacles to set up a new, UN-sponsored, tribunal. Other reasons include the slow pace of these tribunals, even if this pace reﬂects, in part, respect for due process and the rights of defendants – and attendant high costs. There is however a recurrent need to judge alleged criminal leaders where national courts are either unwilling or unable to carry out prosecutions and hearings in accordance with set international standards, at least until the International Criminal Court takes over. One of the main arguments for the creation of mixed national-international tribunals is that these courts will use in part country justice, more understandable for and visible to the local population than the ICTY and the ICTR, both set in countries others than those where the crimes were committed, and applying sui generis international procedures. National judges will judge the alleged perpetrators, while there are no Serbian, Croat or Muslim Bosnians among the ICTY judges, nor any Rwandan judges in the ICTR. Including international judges will ensure that international standards of justice are met. Joint tribunals may also beneﬁt from more resources than those available for a national court, such as additional ﬁnancing, more research capacity. Through the joint daily work of national and international staﬀ, mixed tribunals are expected to contribute to the legal training in international humanitarian law and due process requirements of local judge, prosecutors and other judiciary personnel, thus building or strengthening the capacity of the national justice system. They are also expected to involve more the local population.

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Three joint national-international tribunals have been created recently, with diﬀerent characteristics: one for Sierra Leone, one for Cambodia and one for East Timor, all involving the UN. Sierra Leone’s Special Court The UN and the government of Sierra Leone have set up a Special Court to prosecute and judge those allegedly responsible for atrocities in the Sierra Leone civil war. Historical background

The conﬂict in Sierra Leone dates from March 99 when ﬁghters of the Revolutionary United Front (RUF), led by Foday Sankoh, launched a war from the east of the country near the border with Liberia to overthrow the government. With the support of the Military Observer Group (ECOMOG) of the Economic Community of West African States (ECOWAS) Sierra Leone’s army tried at ﬁrst to defend the government but, the following year, the army itself overthrew the government. Despite the change of power, the RUF continued its attacks. Parliamentary and presidential elections were held in February 996, and the army relinquished power to the winner, Alhaji Dr. Ahmed Tejan Kabbah. However, the RUF did not participate in the elections and did not recognize the results. The conﬂict continued. UN Special Envoy Berhanu Dinka (Ethiopia) assisted in negotiating a peace agreement, in November 996, between the government and the RUF, the Abidjan Accord. The agreement was derailed by another military coup d’état in May 997. This time, the army joined forces with the RUF and formed a ruling junta. President Kabbah and his government went into exile in neighbouring Guinea. In February 998, ECOMOG launched a military attack that led to the collapse of the junta and its expulsion from Freetown. On 0 March, President Kabbah was returned to oﬃce. In June 998, the Security Council established the UN Observer Mission in Sierra Leone (UNOMSIL). Unarmed UNOMSIL teams, under the protection of ECOMOG, documented reports of on-going atrocities and human rights abuses committed against civilians. Fighting continued with the rebels gaining control of more than half the country. In January 999, the RUF overran most of Freetown. Over 6 000 Sierra Leoneans were killed in the four days of an orgy of destruction that followed: among them police oﬃcers, judges, human rights activists, journalists, civil servants, government oﬃcials and ordinary citizens. During the ﬁrst few days of occupation, the rebels were reported to have amputated the limbs of  500 adults and children. Over the years, rebel forces abducted thousands of children for use as labourers, ﬁghters, and, in the case of girls, cooks and sexual partners. Between early January and mid-February 999, childcare agencies in Freetown reported that 2 000 children had disappeared from the city alone. A UN human rights assessment team found that ‘the ultimate responsibility for

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the ﬁghting, for most of the civilian casualties and for the related humanitarian emergency in Freetown rested with the rebel forces’.2 Later the same month, ECOMOG troops retook the capital and again installed the civilian government, although thousands of rebels were still hiding out in the surrounding countryside. By then, over a ﬁfth of the population had been uprooted: 450 000 Sierra Leoneans had ﬂed the country and 700 000 were internally displaced. By the spring of 999, the rebels controlled roughly two-thirds of the country. 'Nothing had quite prepared me’, said Secretary-General Koﬁ Annan of his visit to Freetown, Sierra Leone, in July 999, remarking on the sight of thousands of limbless children and adults, their arms and legs hacked oﬀ by rebel forces during the nine-year civil war. From March 99 to July 999, the civil war created from one to two million refugees, ﬁfty thousand deaths, ﬁve to ten thousand amputated persons, ﬁve to ten thousand women and girls raped, ten thousand children forcibly recruited as soldiers.3 Negotiations between the government and the rebels began in May 999 and on 7 July the parties to the conﬂict signed an agreement in Lomé to end hostilities and form a government of national unity. In addition to providing for a cease-ﬁre between the parties and for disarmament of the RUF, the agreement granted an ‘absolute and free pardon and reprieve to all combatants and collaborators and respect of anything done by them in pursuit of their objectives ... ’ Moreover, the agreement granted the RUF several cabinet seats in the transition government and provided that the RUF may participate in planned national elections. Foday Sankoh was oﬀered the Chairmanship of the Board of the Commission for the Management of Strategic Resources, National Reconstruction and Development, with the status of Vice President. Rather than providing for the prosecution of war crimes, the agreement established a Truth and Reconciliation Commission ‘to address impunity, break the cycle of violence, provide a forum for both the victims and perpetrators of human rights violations to tell their story, [and] get a picture of the past in order to facilitate genuine healing and reconciliations’.4 The Special Representative of the UN Secretary-General entered a reservation to the Lomé agreement, that the ‘United Nations holds the understanding that the amnesty provisions of the Peace Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law’. The UN SecretaryGeneral recommended the creation of an Inquiry Commission on the atrocities committed during the civil war.5 On 20 August 999, the Security Council welcomed the signing of the agreement, commended the Government of Sierra Leone for its courageous eﬀorts to achieve peace and also the leadership of the RUF for taking this decisive step towards peace. Human Rights Watch and Amnesty International denounced the amnesty provision in the agreement. HRW wrote to the Secretary-General: ‘Time and time again, the United Nations’ experience has shown that peace accords built on impunity are shaky and do not hold’. Foday Sankoh was captured by the Sierra Leone government on 7 May 2000, raising hopes for a progress towards peace. However, ﬁghting and atroci-

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ties continued in 2000 and 200. In July 2000, British forces, not under UN control, quelled violence which had erupted in the Spring. In March 200, the UN Security Council expressed its deep concern at the unequivocal and overwhelming evidence received that the Government of Liberia was actively supporting the RUF at all levels. The Council determined that the active support provided by the Government of Liberia for armed rebel groups in neighbouring countries, and in particular its support for the RUF in Sierra Leone, constituted a threat to international peace and security in the region. Acting under Chapter VII of the UN Charter, the Council demanded that the Government of Liberia immediately ceased its support for the RUF in Sierra Leone and for other armed rebel groups in the region, expel all RUF members from Liberia, cease all ﬁnancial and military support to the RUF, cease all direct or indirect import of Sierra Leone diamonds not controlled through the Certiﬁcate of Origin regime and other measures.6 The creation of an independent Special Court

On 2 June 2000, the government of Sierra Leone asked the Security Council to set up an international tribunal on crimes against humanity to try Foday Sankoh and others, under a combination of domestic and international law. At the end of July, the US submitted a draft resolution asking the Security Council to establish a special court which would try senior Sierra Leone nationals who bear the greatest responsibility for the most systematic and egregious criminal violations. The court would combine elements of Sierra Leonean and international law.7 On 4 August 2000, the Security Council adopted resolution 35 (2000), expressing its deep concern at the very serious crimes committed within Sierra Leone against the people of Sierra Leone and UN personnel and at the prevailing situation of impunity. The Council reinterated that the situation in Sierra Leone continued to be a threat to international peace and security in the region. The Council requested the Secretary-General to negotiate an agreement with the government of Sierra Leone to create an independent special court – recommended that its jurisdiction should include notably crimes against humanity, war crimes and other violations of international humanitarian law, as well as crimes under Sierra Leonean law committed within the territory of Sierra Leone – it recommended further that the court should have jurisdiction over persons who bear the greatest responsibility for these crimes, including those leaders who have committed these crimes, have threatened the establishment and implementation of the peace process in Sierra Leone – emphasized the importance of ensuring the impartiality and credibility of the process, in particular with regard to the judges and the prosecutors. The Secretary-General was requested to submit a report on the implementation of this resolution not later than 30 days following the adoption of the resolution. On 4 October 2000, the Secretary-General submitted his Report on the establishment of a Special Court for Sierra Leone.8 Unlike the ICTY and the ICTR, which were established by resolutions of the Security Council and constituted

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as subsidiary organs of the United Nations, and unlike national courts established by law, the proposed Special Court would be established by an Agreement between the United Nations and the Government of Sierra Leone: it would therefore be a treaty-based sui generis court of mixed jurisdiction and composition. Its implementation at the national level will require that the Agreement be incorporated in the national law of Sierra Leone. Its applicable law will include both international and Sierra Leonean law. As a treaty-based organ, the Special Court will not be anchored to any existing system, such as the UN internal administrative law or national law of the seat of the Court. Rules will need to be developed for such purposes as recruitment, staﬀ administration, procurement etc. Regarding the ﬁnancing of the Court, the Secretary-General’s view was that the only realistic solution was ﬁnancing through assessed contributions. . In a letter dated 22 December 2000 from the President of the Security Council to the Secretary-General,9 members of the Council opted for funding through voluntary contributions, thus rejecting implicitly the Secretary-General’s ‘realistic solution’. Article 6 of the Agreement between the UN and the government conﬁrms this decision, on the understanding that the Secretary-General would commence the process of establishing the Court when he had suﬃcient contributions in hand to ﬁnance the establishment of the Court, 2 months of its operations plus pledges equal to the anticipated expenses of the following 24 months of the Court’s operations. Should voluntary contributions be insuﬃcient for the Court to implement its mandate, ‘the Secretary-General and the Security Council shall explore alternate means of ﬁnancing the Special Court’. By a letter of 9 February 200 to the UN Legal Counsel, the government of Sierra Leone expressed its willingness to accept the Statute and Agreement.0 On 6 January 2002, the UN and the government signed an Agreement setting up the Court. The Court is to function in accordance with its Statute, an annex to the Agreement forming an integral part of the Agreement. The Ratiﬁcation Act was enacted in March 2002, the Presidential Assent was given on 29 March. The Special Court Agreement entered into force on 2 April 2002. The Statute of the Court

– Competence of the Court: the Court has the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone2 (Art. ); – The Court has power to prosecute persons who committed crimes against humanity as part of a widespread or systematic attack against civilian population (Art. 2). It has the power to prosecute persons who committed or ordered the commission of serious violations of article 3 common to the Geneva Conventions of 2 August 949 for the Protection of War Victims, and

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–

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–

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– –

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of Additional Protocol II thereto of 8 June 977 (Art. 3). The Court’s power extends to other serious violations of international humanitarian law, including conscripting or enlisting children under the age of 5 years into armed forces or groups or using them to participate actively in hostilities (Art. 4). It also includes crimes against speciﬁed Sierra Leonean Law (Art. 5); The provisions concerning individual criminal responsibility are the same as in the Statutes of the ICTY and ICTR, except that individual criminal responsibility for the crimes against Sierra Leonean Law will be determined in accordance with the respective laws of Sierra Leone (Art. 6); The Court has no jurisdiction over any person who was under the age of 5 at the time of the alleged commission of the crime. In the disposition of a case against a juvenile oﬀender, the Court shall order such programmes as care guidance, community service orders, counselling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies (Art. 7); The Special Court and the national courts of Sierra Leone have concurrent jurisdiction. The Special Court has primacy over the national courts. At any stage of the procedure, the Special Court may formally request a national court to defer to its competence (Art. 8); Under the principle of non bis in idem, no person shall be tried before a national court of Sierra Leone for acts for which he or she has already been tried by the Special Court. A person who has been tried by a national court may be subsequently tried by the Special Court under speciﬁc conditions (Art. 9); An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in article 2 to 4 of the Statute will not be a bar to prosecution (Art. 0); Organization of the Special Court: The Special Court consists of the following organs: – The Chambers, comprising one or more Trial Chambers and an Appeals Chamber; – The Prosecutor, and – The Registry (Art. ), The Chambers are composed of not less than eight or more than eleven independent judges, serving as follows: – three judges serve in the Trial Chamber, of whom one is a judge appointed by the government of Sierra Leone, and two judges appointed by the UN Secretary-General; – ﬁve judges serve in the Appeals Chamber, of whom two judges appointed by the government of Sierra Leone and three judges appointed by the Secretary-General; the judges of the Appeals Chamber and the judges of the Trial Chamber, respectively, elect a presiding judge. The presiding judge of the Appeals Chamber is the President of the Court (Art. 2);

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– Judges should have the same qualiﬁcations as those of the ICTY and ICTR. They are independent in the performance of their functions. They are appointed for a four-year period, renewable (Art. 3); – The Rules of Procedures and Evidence of the ICTR obtaining at the time of the establishment of the Special Court are applicable mutatis mutandis to the conduct of legal proceedings before this Court (Art. 4); – The Prosecutor is responsible for the investigation and prosecution of persons who bear the greatest responsibility for serious violations of international humanitarian law and crimes under Sierra Leonean law committed in the territory of Sierra Leone since 30 November 996. The Prosecutor acts independently as a separate organ of the Special Court. The Prosecutor is appointed by the Secretary-General for a four-year term and is eligible for reappointment. He is assisted by a Sierra Leonean Deputy Prosecutor (Art. 5); – The Registry is responsible for the administration and servicing of the Special Court. The Registrar is appointed by the Secretary-General after consultation with the President of the Special Court. He or she is a UN staﬀ member. He or she serves for a three-year term, renewable (Art. 6); – Rights of the accused: The accused are entitled to a fair and public hearing, they are presumed innocent until proved guilty according to the provisions of the Statute (Art. 7); – Judgments are rendered by a majority of the judges of the Trial Chamber or Appeals Chamber, they are delivered in public. They are accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended (Art. 8); – The Trial Chamber imposes upon a convicted person, other than a juvenile oﬀender, imprisonment for a speciﬁed number of years. In determining the terms of imprisonment, the Court will, as appropriate, have recourse to the practice regarding prison sentences in the ICTR and the national courts of Sierra Leone. In addition to imprisonment, the Trial Chamber may order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to their rightful owner or to the State of Sierra Leone (Art. 9); – The Appeals Chamber hears appeals from persons convicted by the Trial Chamber or from the Prosecutor on the grounds of a procedural error, an error on a question of law invalidating the decision, an error of fact which has occasioned a miscarriage of justice. The Appeals Chamber may aﬃrm, reverse, or revise the decision of a Trial Chamber (Art. 20); – An application for review of a judgment is submitted to the Appeals Chamber (Art. 2); – Imprisonment is served in Sierra Leone. If circumstances so require, imprisonment may also be served in any of the States which have concluded with the ICTR or the ICTY an agreement for the enforcement of sentences and which have indicated to the Registrar of the Court their willingness to accept convicted persons (Art. 22).

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– Provisions for pardon or commutation of sentences are in Art. 23. The working language of the Court is English (Art. 24). – Financing The Special Court is ﬁnanced from voluntary contributions, and not by the UN regular budget, as the ICTY and the ICTR. More than 30 countries have contributed to the budget of the Court, although four of them (Canada, the Netherlands, the UK and the USA) have provided two-thirds of the Court’s ﬁrst-year budget. The ﬁrst year’s budget is $9 million, and the Court has sought $33 million for its second year. By the third, its total budget for three years is estimated to be around $75 million. In 2004, as forecast earlier by the Secretary-General, the voluntary funding mechanism fell short of its goal for 2005 and the Secretary-General proposed that the ﬁnal tranche of funding came from the UN regular budget.3 The Court’s beginnings

The Oﬃce of the Prosecutor and the Registry began operating in August 2002 in temporary premises in Freetown. On 2 December, the eight judges – two Sierra Leoneans and six international judges – took their oaths at a ceremony in Freetown. They swore to serve the Court ‘honestly, faithfully, impartially and conscientiously’. Justice Geoﬀrey Robertson (Australia) was elected presiding judge of the Appeals Chamber, and thus President of the Court. By April 2003, the Registry had put into place an Outreach Unit to be staﬀed by 7 persons,with small oﬃces spread throughout the country in a District Grassroots Network. It plans to create a forum to interface between civil society and the Court. On 0 March 2003, the Court announced the indictment of seven persons for war crimes, crimes against humanity and serious violations of international humanitarian law. In particular, the Court will investigate murder, rape, sexual slavery, extermination, acts of terror, enslavement, looting and burning. Those detained included Foday Sankoh, Sam Hinga Norman, Sierra Leone Minister of Foreign Aﬀairs, and former RUF leaders Issa Sesay and Morris Kallon. The Prosecutor, David Crane (USA), also called on West African countries harbouring the former rebel commander, Sam Bockarie and the former military leader, Johnny Paul Koroma, to transfer them to the Court. Bockarie died in Liberia on 6 May 2003 ‘resisting arrest by government forces’. His body was transferred to the Court in June 2003. On 5 March 2003, Foday Sankoh appeared before the Court. As leader of the Revolutionary United Front (RUF), Sankoh was responsible for the campaign of brutal violence started in 99, during which thousands of children, boys and girls, were abducted and forced to ﬁght, often drugged, for the RUF. The RUF was notorious for amputating the victims’ limbs and for carrying out

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widespread rapes and other crimes. During his captivity, Sankoh appeared to have lost his mind. Appearing before the judge in a wheel-chair, barely able to utter his name, the Court adjourned the trial and asked for Sankoh to undergo medical and psychological examinations. He died of a pulmonary embolism on 29 July 2003. RUF commander Issa Sesay appeared next and pleaded not guilty on all 7 counts, which include unlawful killing, physical and sexual violence. On 4 June 2003, the Prosecutor publicly indicted Charles Taylor, then still President of Liberia, charging him with ‘bearing the gravest responsibility’ for war crimes (murder, taking hostages), crimes against humanity (extermination, rape, murder, sexual slavery) and other serious violations of international humanitarian law (use of child soldiers) during the ten years of civil war in Sierra Leone. According to the indictment, Taylor provided training and helped ﬁnance the RUF in preparation for armed action in Sierra Leone and during the conﬂict. According to Human Rights Watch, ‘Taylor is one of the single greatest causes of spreading wars in West Africa’.4 At the time, the US was exercising pressure on Taylor to step down from oﬃce ‘which would create the necessary conditions to achieve a peaceful solution to the civil conﬂict in Liberia’, in the words of President Bush.5 On  August 2003, Taylor left Liberia, after having accepted Nigeria’s oﬀer of safe haven. The President of Nigeria, Olusegun Obasango, ﬁrst resisted US congressional pressure to turn over Taylor to the Court: the Congress has oﬀered a $2 million reward oﬀer for Taylor’s arrest. In November, the Nigerian President agreed to surrender Taylor for trial, if Liberia made the request.6 By September 2004, Taylor was still in Nigeria, under the protection of the country’s President. The new courthouse of the Court was oﬃcially opened in Freetown on 0 March 2004. The Court’s decisions in 2004

Joint trials On 27 January 2004, the Trial Chamber ruled that nine persons indicted by the Court should be tried jointly in three groups, according to which factions they were alleged to have belonged to: the RUF, the Armed Forces Revolutionary Council (AFRC) – the military junta responsible for the coup in 997, which later joined forces with the RUF -, and the Civil Defence Forces (CDF) – largely composed of traditional hunters, who were called upon to ﬁght the RUF.7 The Court’s status Several arguments and submissions were put forward by Defence Counsel in support of his contention that the Special Court is unconstitutional, that the government acted unconstitutionally in establishing it and that the Court is therefore an ultra vires and unconstitutional institution. The Appeals Chamber concluded on 3 March 2004, that the Preliminary Motions ought to be dismissed and were dismissed. Its decision aﬃrmed the following points:

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– The Appeals Chamber has the competence to determine whether or not the Special Court has jurisdiction to decide on the lawfulness and validity of its creation; – It recalled that the Special Court is a treaty-based sui generis court of mixed jurisdiction and composition; – The Special Court Agreement was duly signed by the UN and the government, then ratiﬁed by the government; – The Special Court is not part of the judiciary of Sierra Leone, but the Agreement was incorporated into the laws of Sierra Leone; – The Special Court provides for Fair Trial Safeguards; – The Special Court is an international tribunal exercising its jurisdiction in an entirely international sphere and not within the system of the national courts of Sierra Leone.8 Removal of Justice Robertson On 27 February 2004, counsel for General Issa Sesay, former interim leader of the RUF, ﬁled a motion seeking the disqualiﬁcation of Justice Robertson from the Appeals Chamber on the grounds that the judge ‘has expressed the clearest bias against both the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC) and thereby has displayed lack of impartiality to the accused indicted as member of these groups and their respective defences’. The allegation of bias was based on a book authored by Robertson, titled ‘Crimes against humanity: the struggle for global justice’, in which he wrote that the RUF was guilty of atrocities on a scale that amounted to a crime against humanity. For the defence, he had ‘prejudged certain central issues in the case before the courts’. Lawyer Terrence Terry, representing Charles Taylor – referred to in the book as ‘Liberia’s vicious warlord’ – had already made a similar claim. On 2 March, Robertson rejected the motion, arguing in a nine-point statement submitted to the Court that ‘the Rules provide only for a challenge to a judge from hearing a particular case on appeal, and not for a motion of this kind which seeks to remove a judge from all hearings in relation to all defendants: In his view, ‘To permit such a challenge would be contrary to the principle of judicial independence, under which a judge must be secure in the oﬃce itself, notwithstanding the right of parties to seek his removal from the bench in a particular case, or the power of his colleagues to require his removal in that case’. On 3 March, the Appeals Chamber ruled that Robertson was right in stating that the Rules made no provision for any judge to be dismissed from the Court, except in those cases where a judge is ‘palpably unﬁt – e.g. through ill health or criminal conviction’. However, it ruled that Robertson should be disqualiﬁed from adjudicating on those motions involving alleged members of the RUF for which decisions were pending in the Appeals Chamber, and cases involving the RUF if and when they come before the Appeals Chamber.9

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Judicial independence: funding of the Court On 3 March, the Appeals Chamber dismissed a preliminary motion brought by Defence Counsel for the accused Sam Hinga Norman , arguing that his right to a fair hearing was breached as there were legitimate grounds to fear that the Tribunal was not independent because of its funding arrangements. Defence Counsel had submitted that the funding arrangements made for the Court and the function of the Management Committee (consisting of representatives of donor states, e.g. Canada, The Netherlands, Nigeria, the UK and the USA) create a legitimate fear of interference in justice delivery by the Court through economic manipulation. It was argued that donor states could indicate their displeasure with a decision of the Court by withholding their contribution to the funds of the Court. In response, the Prosecution argued that the Court was free from any reasonable apprehension of bias because of the selection process of the judges, diplomatic immunity granted to them and the merely advisory nature of the Management Committee. The Appeals Chamber found that mere complaint about funding arrangements of a Court cannot by itself be a ground for imputing a real likehood of inﬂuence to a judge, but it has to be established that such funding arrangements are capable of creating a real and reasonable apprehension in the mind of an average person that the judge is not likely to be able to decide fairly. The Appeals Chamber concluded that, as the liability of the Court to pay remuneration to the judges is in no way conditional upon whether the Parties to the Agreement establishing the Court are able to raise voluntary contributions to fund the Court, ‘[the] assumptions on which the applicant based his challenge to the jurisdiction of the Court are far-fetched and have no actual basis’. Moreover, the Appeals Chamber held that states which have contributed to the funds of the Court must have done so because they believe in due process of law and the rule of law and that the Management Committee has no cause to inﬂuence and cannot, in performance of its role, inﬂuence the Court in the determination of cases before it. Therefore, the funding arrangements of the Court can in no reasonable way be seen to lead to any real likehood of bias or lack of judicial independence in the Court in the determination of matters before it, and consequently the preliminary motion was dismissed.20 While agreeing with the reasons of the majority, Justice Robertson appended a separate opinion, in which he concluded, in part: In the present case, it is impossible for any reasonable observer to identify any existing or potential ﬁnancial temptation either to acquit or convict this Applicant, or all defendants from his faction, or all defendants. The interest of donor states is that the Court they pay for will be successful – but ‘success’ cannot be judged by a conviction rate , let alone by any conviction of Chief Hinga Norman. ‘Success’ will be judged by the Court’s record in doing justice, expeditiously and fairly; a wrongful or wrongfully inﬂuenced conviction would amount to a ‘failure’ – and one which would have the

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Chapter 5 results of denigrating the Court and (by the Applicant’s own implication) the donors who supported its justice mission.2

Amnesty provided by the Lomé Peace Agreement The Appeals Chamber decided on 3 March that the amnesty granted under Article IX of the Lomé Peace Agreement does not bar the prosecution of an accused for international crimes committed before July 999 before the Special Court. The Defence for Morris Kallon and Brima Bazzy Kamara had ﬁled preliminary motions arguing that the government of Sierra Leone was bound to observe the amnesty by this Agreement between the government and the RUF. They submitted that the Court should not assert jurisdiction over crimes committed prior to July 999 when the amnesty was granted and it would be an abuse of process to allow the prosecution of any of the alleged crimes pre-dating the Lomé Agreement. The Prosecution argued that the Court is bound by Article 0 of its Statute (which states that amnesty shall not be a bar to prosecution in respect of international crimes) and that the Lomé Agreement, being an agreement between two national bodies, is not an international treaty and is limited in eﬀect to domestic law. The Prosecution also submitted that under international law a government cannot grant amnesty for serious violations of international crimes. The Appeals Chamber found that the Lomé Agreement created rights and obligations that are to be regulated by the domestic laws of Sierra Leone. Consequently, whether it is binding on the government of Sierra Leone or not does not aﬀect the prosecution of an accused in an international tribunal for international crimes. The Chamber held that the general amnesty granted in the 999 Lomé Agreement was ‘ineﬀective’ in preventing international courts, such as the Special Court, or foreign courts from prosecuting crimes against humanity and war crimes. It also considered as ‘in accordance with international law’ the instruction by the UN Secretary-General to his Special Representative in Sierra Leone to append to his signature of the peace agreement an explicit proviso that the amnesty ‘shall not apply to international crimes of genocide, crimes against humanity and other serious violations of international humanitarian law’. The Chamber added that the ‘interpretative declaration appended by the SecretaryGeneral’s representative at the signing of the Lomé Agreement is in accordance with international law and is suﬃcient indication of the limits of the Amnesty granted by the Agreement’.22 The Chamber further found that Article 0 of the Court’s Statute is valid, as it is an express statutory limitation on the discretion of the Court to decline jurisdiction on the sole ground that an amnesty has been granted to a defendant. Where there is such an express provision of a statute, a tribunal would be acting unlawfully if it circumvents this provision. Moreover, the Appeals Chamber concluded that an international tribunal, such as the Special Court, cannot be

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deprived of jurisdiction to prosecute an oﬀender by the grant of an amnesty. For these reasons, the preliminary motions were dismissed.23 The claimed immunity of Charles Taylor Charles Taylor, the former President of the Republic of Liberia, submitted an application to quash his indictment and to set aside the warrant for his arrest on the grounds that he is immune from any exercise of the jurisdiction of the Special Court by the virtue of the fact that he was, at the time of issue of the indictment and warrant of arrest against him, a Head of State. On 3 May 2004, the Court dismissed this motion.24 The Court stated that the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court. The Appeals Chamber found that Article 6(2) of the Statute was not in conﬂict with any peremptory norm of general international law and that its provisions must be given eﬀect by the Court. Under Article 6(2), ‘The oﬃcial position of any accused persons, whether as Head of State or Government or as a responsible government oﬃcial, shall not relieve such person of criminal responsibility nor mitigate punishment’. It held that the oﬃcial position of the Applicant as an incumbent Head of State at the time when these criminal proceedings were initiated against him is not a bar to his prosecution by the Court. Claimed lack of jurisdiction (child recruitment) In re Prosecutor v. Sam Hinga Norman, a Preliminary Motion raised the question as to whether the crime as deﬁned in Article 4(c) of the Statute was recognized as a crime entailing individual criminal responsibility under customary international law at the time of the acts alleged in the indictments against the accused which date back to November 996. Article 4(c) includes among the ‘serious violations of international law’ giving power to the Court to prosecute persons who have committed such a crime: ‘Conscripting or enlisting children under the age of 5 years into armed forces or groups or using them to participate actively in hostilities’. The Court, in a majority decision rendered on 3 May 2004, dismissed the Preliminary Motion.25 It argued that the protection of children is one of the fundamental guarantees articulated in Additional Protocol II and reﬂected in the Special Court Statute. As can be veriﬁed in numerous reports of various human rights organizations, the practice of child recruitment ‘bears the most atrocious consequences for the children’. Serious violations of fundamental guarantees lead to individual criminal liability. Therefore the recruitment of children was already a crime by the time of the adoption of 998 Rome Statute for the ICC, which codiﬁed and ensured the eﬀective implementation of an existing customary norm relating to child recruitment rather that forming a new one. For the Court majority, a norm need not be expressly stated in an international convention for it to crystallize as a crime under customary international law. The Court majority concluded that child recruitment was criminalized before it was explicitly set

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out in treaty law and certainly by the time frame relevant to the indictments: the principle of legality and the principle of speciﬁcity were both upheld. In his Dissenting Opinion, Justice Robertson was ‘in no doubt that the crime of non-forcible enlistment did not enter international criminal law until the Rome Treaty’. Consequently, he ‘would grant a declaration to the eﬀect that the Applicant must not be prosecuted for any oﬀence of enlistment, under 4(c), alleged to have been committed before the end of July 998’. Relationship with the Truth and Reconciliation Commission

The Peace Agreement signed in Lomé on 7 July 999 between the Government of Sierra Leone and the RUF provided for, inter alia, the establishment of a Truth and Reconciliation Commission (TRC).26 The Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone of 4 October 2000 did not address in detail speciﬁcs of the relationship between the Court and the National Truth and Reconciliation Commission. It however recognized that relationship and cooperation arrangements would be required between the Prosecutor and the Commission, including the use of the Commission as an alternative to prosecution, and the prosecution of juveniles in particular.27 In February 2000, the Sierra Leone Parliament adopted the Truth and Reconciliation Commission Act 2000. This Act mandated the TRC to compile an impartial historical record of violations of human rights and international humanitarian law related to armed conﬂict, address impunity, respond to the needs of victims, promote healing and reconciliation, and prevent a repetition of abuses.28 To this end, the TRC has engaged in statement taking, public hearings, and research and investigations, with the goal of completing a ﬁnal report with recommendations to the government on institutional reforms intended to address these objectives. The TRC and the Special Court were established separately as independent bodies and their relationship was not clariﬁed in the TRC Act nor in the Agreement and Statute of the Court, except for the provision in Article 5.5 of the Statute, which prescribes that ‘In the prosecution of juvenile oﬀenders, the Prosecutor shall ensure that the child-rehabilitation programme is not placed at risk and that, where appropriate, resort should be had to alternative truth and reconciliation mechanisms, to the extent of their availability’. A ﬁrst issue was whether the Special Court would seek access to information obtained by the TRC. In a town hall meeting held in September 2002, the Prosecutor decided that he would not seek information from the TRC. Inversely, in May 2003, the TRC sought access to Hinga Norman and other Court detainees for the purpose of taking testimony for the historical record. President Robertson denied the request for a public hearing of Hinga Norman and held that the preferable method would be a written aﬃdavit, with a follow-up interview if necessary. Robertson took the view that the accused would use the opportunity of a public hearing as a public platform, aﬀecting the public perception of the integrity of the proceedings.29

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Assessment

Some authors have deplored that the Special Court’s competence is limited to the prosecution of persons who bear the ‘greatest responsibility’ for serious violations of international humanitarian law and Sierra Leonean law. Both the ICTY and the ICTR Statutes do not have this limitation, but in practice, these Tribunals have, after some indecision, chosen to prosecute and judge the main and most senior responsible persons in preference to those at lower levels. The competence of the ICC to exercise jurisdiction over persons ‘for the most serious crimes of international concern’ (Art.  of its Statute) would seem to restrict its competence in a way analogous to that of the Special Court. Judging those with the greatest responsibility for crimes against humanitarian law would seem most appropriate for international criminal tribunals, as placing the responsibility for such crimes where it belongs, i.e. with the senior leaders responsible for those crimes, while leaving the prosecution of lower-level persons to national courts. Besides this question of principle, the set life of the Special Court (three years in principle) and ﬁnancial considerations have also played a role in limiting its competence. McDonald30 has identiﬁed several other problems which may handicap the Special Court. However, these are part of its Statute and cannot therefore be corrected by the Court itself. Unlike the ICTY and ICTR, which were established by a Security Council resolution under Chapter VII of the UN Charter, the Special Court was set up by an Agreement between the UN and the Sierra Leone government. Under Article 9 of its Statute, the Court’s primacy applies only over the national courts of Sierra Leone. Without Chapter VII authority, the Special Court lacks the power to order that another state arrest an accused person or compel evidence to be handed over. However, even with Chapter VII authority, both the ICTY and the ICTR have met considerable political and administrative obstacles in seeking the cooperation of other states mainly in obtaining custody of accused persons. Certain states have taken steps to assist the Special Court without a legal obligation. For example, Switzerland has frozen millions of dollars of Charles Taylor’s assets at the request of the Prosecutor.3 On the other hand, neither Ghana nor Nigeria have cooperated with the Court following the indictment of Taylor. A second potential problem is its funding by voluntary contributions, which are, by essence, volatile. Contributions by a small number of countries, as opposed to obligatory contributions by all Member States to the UN regular budget, give rise to suspicions of possible inﬂuence or pressures from those few countries on the functioning of the Court, even though these suspicions have been rejected by the Appeals Court in the Norman motion. The best argument for the Appeals Court’s position will rest in the perfomance of the Court, based on the proven competence, impartiality and independence of the judges. As another problem, McDonald considers that

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Chapter 5 A major failing of the [draft] Statute is the absence of provisions relating to reparations for victims and their participation in the criminal proceedings. This represents a major backtracking from the relatively progressive provisions of the ICC Statute.

While it is correct that the approved Statute of the Special Court does not include such provisions, neither Statute of the ICTY and the ICTR include them: this is a failing common to all three Tribunals. The Statute of the Special Court includes a provision according to which ‘In addition to imprisonment, the Trial Chamber may order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to their rightful owner or to the State of Sierra Leone. Similar provisions are found in the Statutes of the ICTY and ICTR.32 According to a report by the International Center for Transitional Justice dated March 2004, the Special Court has shown a clear understanding of its mandate, and its management seemed relatively eﬃcient. Senior Court oﬃcials have maintained a courteous relationship. Former staﬀ members from the other international Tribunals have brought crucial experience and knowledge to the Special Court, as has the blend of former UN and non-UN professionals.33 It does appear that the Special Court is beneﬁtting from the experience of the ICTY and the ICTR not only through interchange of personnel but also through transfer of judiciary experience and reliance on the jurisprudence of these Tribunals. The format of the Statute of the Special Court follows, with suitable adjustments, the format of the Statutes of the ICTY and ICTR. The Rules of Procedure and Evidence of the Special Court are an altered and abbreviated version of the Rules of the ICTR, amended on  August 2003. The Separate Opinion of Justice Geoﬀrey Robertson of 3 March 2004 refers to the ICTY Appeals Chamber decision in Furundzija. The structure of the Special Court in three organs, the Registry, Chambers and the Oﬃce of the Prosecutor is the same as that of the ICTY and ICTR. In terms of jurisprudence, the Special Court has asserted its legitimacy as a treaty-based sui generis court of mixed jurisdiction and composition, an innovative international judiciary creation, due to a large extent to the competence and imagination of the UN legal experts, with the cooperation of the Sierra Leone government and the support of other governments. It has aﬃrmed its independence. For instance, the independence of the Court was demonstrated when the Prosecutor publicly indicted Charles Taylor on 4 June 2003 to the known displeasure of several diplomats who felt that this was detrimental to the peace process in Liberia. Louise Arbour also showed her independence from Western governments when she announced the indictment of Milosevic and other Serb leaders on 27 May 999, a decision not equally appreciated by all Western leaders. The Court has held that national amnesty for crimes against humanity and war crimes was ineﬀective in preventing international courts, such as the Special Court, or foreign courts from prosecuting such crimes.

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The speciﬁc provisions applying to juvenile oﬀenders in the Court’s Statute and in the Truth and Reconciliation Commission Act 2000 are innovative and useful, in response to the many atrocities committed by children and on children. The Court will assess the lawfulness of the forceful conscription of children as well as transgressions by peacekeepers, thus setting a jurisprudence on this uncharted territory. The Delayed Trial of the Khmer Rouge Leaders The genocide, initiated and carried out by the Khmer Rouge regime between 975 and January 979, caused the death of at least .7 million Cambodians, widespread suﬀering and economic disruption. It is however unlikely that the principal Khmer Rouge leaders will ever be judged and sentenced by an independent tribunal. Historical background

Cambodia gained independence from France in 953 under the leadership of Prince Norodom Sihanouk and the 954 Geneva Conference on Indochina recognized its neutrality.34 Massive US air bombing carried out in Cambodia during the Vietnam war from February to August 973 caused deaths, suﬀering and a strong hate of the Americans, which gave popular support to the communist Khmer Rouge forces, led by Pol Pot. The Khmer Rouge took over the country in April 975 from the Lon Nol government, supported by the US. The new leaders ordered the evacuation of the cities, causing a gigantic exodus of more than 2 million people, with thousands of deaths. Hospitals, schools, factories and monasteries were closed and all individual rights and freedoms abolished. The ‘old society’, the bourgeoisie, the ‘corrupt city dwellers’ and educated people had to be eliminated to leave only a young fanatic class of revolutionaries. Chiefs of cooperatives and soldiers had full powers to punish and kill. Identiﬁed members of the condemned groups were subject to deportation, torture, massacres, starvation and uncared-for diseases, leading to more deaths. Deaths caused by deliberate killings, exhaustion, disease or starvation are estimated at .7 million out of a population of 7.3-7.9 million in 975. They were the consequences of a governmental policy that imposed massive migration, forced labour and inhumane living conditions on the people and attacked perceived enemies of the revolution. The well-hidden genocide committed by the Khmer Rouge leaders and their indoctrinated followers was a product of ill-conceived, autistic Marxism and Maoism, mixed with feelings of national pride, economic self-suﬃciency, rejection of foreign imperialism, hate of the Vietnamese, and a spirit of revolutionary violence. In December 978, the Vietnamese army intervened, meeting no resistance except from the retreating Khmer Rouge forces, which took refuge in forest sanctuaries along the Thai border. A pro-Vietnamese government was installed

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in Phnom Penh as the People’s Republic of Kampuchea, and was soon recognized by Vietnam, Laos, and the USSR and her allies. The USA, China and Thailand, all enemies of Vietnam continued to support and send arms to the Khmer Rouge. The USA was still grieving from its defeat in the Vietnam war, China was opposed to the Soviet-supported Vietnam, both China, Thailand and other countries in Asia feared the political and military expansion of Vietnam. The Khmer Rouge continued to represent Kampuchea in the United Nations, the Vietnamese intervention being condemned as ‘aggression’. In 99, the Paris Conference on Cambodia adopted the ‘Agreements on a Comprehensive Political Settlement of the Cambodia Conﬂict’, which created the UN Transitional Authority in Cambodia (UNTAC). UNTAC was to deal with the four competing factions of Cambodia, including the genocidal Khmer Rouge Party of Democratic Kampuchea. In spite of Khmer Rouge harassment, refusal to disarm and refusal to participate in the UN-organized elections, these were held in May 993 with a high voter participation. This was the beginning of the ﬁnal loss of power and inﬂuence of the Khmer Rouge, which accelerated with defections from the Pol Pot core group, and the death of Pol Pot himself in April 998. The ﬁrst political trials

Following the Vietnamese intervention, the Revolutionary People’s Tribunal, sitting in Phnom Penh in August 979, ruled that Pol Pot, alias Saloth Sar, and Ieng Sary were guilty of the crime of genocide, condemned them both to death in absentia and ordered that all their properties be conﬁscated.35 The judgement was ﬁnal. Pol Pot was the Secretary of the Angkar (Party Organization) and held the highest oﬃce in leading the entire State apparatus. Ieng Sary, as Standing Political Bureau member of the Angkar and Deputy Prime Minister in charge of foreign aﬀairs, shared leadership with Pol Pot. They were found guilty of genocide on the following counts as deﬁned in Decree-law No.  of 5 July 979. The court exercised revolutionary ‘victors’ justice’ at the national level. The international standards for ‘a fair and public hearing by a competent, independent and impartial tribunal established by law’36 were not respected. The openly political trial was not monitored by independent international observers. On 23 July 997, the ‘surreal trial’ of Pol Pot, in the words of the New York Times was held in Anlong Veng in the north of Cambodia. It was witnessed by Nate Thayer, the correspondent for the Far Eastern Economic Review. The aged and sickly Pol Pot was publicly humiliated by a small, disciplined Khmer Rouge group and condemned to life imprisonment. The spectators periodically lifted their ﬁsts in unison and shouted ‘Crush, crush, crush Pol Pot and his clique’. Pol Pot was tried for political reasons internal to the Khmer Rouge, not because he had directed genocide. His trial had no pretense of fair justice or due process. In an interview with Thayer held on 5 October 997, Pol Pot said that he had no regrets, his conscience was clear.

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The Khmer Rouge announced on 6 April 998 that Pol Pot, aged 73, had died the day before of a heart failure.37 Towards a mixed national-international tribunal

In a letter dated 2 June 997 addressed to the UN Secretary-General, Prince Norodom Ranariddh, Cambodia’s First Prime Minister (later removed from this position by Hun Sen) and Hun Sen, Second Prime Minister, asked for the assistance of the UN and the international community in bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge from 975 to 979. Hun Sen’s policy was to give priority to national reconciliation and peace rather than to justice. Hun Sen was a former Khmer Rouge leader who defected and helped Vietnamese forces to overthrow the Pol Pot regime. He encouraged Khmer Rouge troops to defect, telling them ‘We were not at fault at all in creating the war and the genocidal regime’ ... During the 970s there was a small group of people who created the war, and we were all just victims’. In September 996, King Norodom Sihanouk conferred pardon on Ieng Sary, at the request of the two Prime Ministers. Ieng Sary asserted that he was not involved in the genocide. He said: ‘I have no regrets, because this was not my responsibility’. In January 997, more than 200 former Khmer Rouge were appointed as senior oﬃcers in the Cambodian army. 8 000 former Khmer Rouge would form eight new army divisions and two regiments. On 25 December 998, two senior Khmer Rouge leaders, Khieu Samphan, former head of state of the Khmer Rouge, and Nuon Chea, main ideologist and responsible for security, surrendered to the Hun Sen government. They said they were ‘very sorry’ not only for the human lives, but also for the loss of animal lives lost during the war. They rejected any personal responsibility. Hun Sen said that they should be welcomed ‘with bouquets of ﬂowers, not with prisons and handcuﬀs’. A trial would only open old wounds and lead to possible instability: ‘We should dig a hole and bury the past and look ahead to the 2st century with a clean slate’. On 2 December 997, the UN General Assembly endorsed the comments of the UN Special Representative for human rights in Cambodia that the most serious human rights violations in Cambodia in recent history have been committed by the Khmer Rouge and that their crimes, including the taking and killing of hostages, have continued to the present.38 It noted with concern that no Khmer Rouge leader had been brought to account for his crimes. It requested the Secretary-General to examine the request by the Cambodian authorities for assistance in responding to past serious violations of Cambodian and international law, including the possibility of the appointment, by the Secretary-General, of a group of experts to evaluate the existing evidence and propose further measures, as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability. The Special Representative had expressed his concerns about the problem of impunity in Cambodia.

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Only two Khmer Rouge leaders were arrested, as they had failed to negotiate surrender deals:39 Kang Kek Ieu, head of the Khmer Rouge secret police and commandant of the infamous Tuol Slen prison, arrested in March 999, and Ta Mok, a notorious military commander known as ‘The Butcher’, arrested in May 999. As suggested by the General Assembly, in the Spring of 998, the UN Secretary-General appointed an expert group with the following mandate: () to evaluate the existing evidence with a view to determining the nature of the crimes committed by Khmer Rouge leaders in the years 975-979; (2) to assess the feasibility of their apprehension; and (3) to explore legal options for bringing them to justice before an international or national jurisdiction.40 The group submitted its report to the Secretary-General on 22 February 999. On the basis of the material and documents made available to it, the group concluded that the evidence gathered to date testiﬁed to the commission of serious crimes under international and Cambodian law, and that suﬃcient physical and witness evidence existed to justify legal proceedings against the Khmer Rouge leaders for these crimes. It considered that the crimes committed by Khmer Rouge leaders during the 975-979 period included crimes against humanity, genocide, war crimes, forced labour, torture and crimes against internationally protected persons, as well as crimes under Cambodian law. It recommended that trials be conﬁned to ‘those persons most responsible for the most serious violations of human rights in Cambodia ... includ[ing] senior leaders with responsibility over the abuses as well as those at lower levels who are directly implicated in the most serious atrocities’. In the view of the group, the question of the feasibility of apprehending Khmer Rouge leaders turned on the ability and willingness of the government to eﬀectuate their arrest or extradition. Both Hun Sen and the government of Thailand expressed their willingness and readiness to apprehend any person indicted by the independent prosecutor of an international tribunal, should one be established. The group examined the following legal options for bringing Khmer Rouge leaders to justice: a tribunal established under Cambodian law; a tribunal established by the Security Council or the General Assembly as an ad hoc international tribunal; a mixed option of a Cambodian tribunal under UN administration; an international tribunal established by multilateral treaty and trials in third states. It recommended that the UN should establish an ad hoc international tribunal to try Khmer Rouge oﬃcials for crimes against humanity and genocide committed from 7 April 975 to 7 January 979, that the Security Council establish this tribunal, or, should it not do so, that the General Assembly establish it. The group favoured the Council as facilitating swifter action. In rejecting trials in both a Cambodian criminal court and a UN-supervised Cambodian court, the group reasoned that such options were too prone to manipulation by the government of Cambodia and other political forces.4 The level of corruption of Cambodia’s courts was so high that the population had justiﬁably lost conﬁdence in them. In the group’s view, even extensive involvement of foreign personnel – perhaps through a mixed tribunal – would not solve the

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problem, as the government could exert undue inﬂuence during prosecutions. As for a UN-supervised Cambodian court, it would still place too much initiative on the Cambodian government, which would ﬁnd ways to stall the process. The group recommended that the trials be held outside Cambodia, as an international court sitting in Cambodia could be manipulated in terms of interference with the work of the prosecutors, investigators and judges. The report proposed trials in ‘a State situated somewhere in the Asia-Paciﬁc region’, meaning Australia, Singapore or the Philippines. The UN Secretary-General transmitted the expert group’s report under cover of his identical letters dated 5 March 999 to the President of the General Assembly and the President of the Security Council.42 He mentioned that the government of Cambodia, having considered the report, in a letter addressed to him dated 3 March 999, cautioned that any decision to bring Khmer Rouge leaders to justice must take account of Cambodia’s need for peace and national reconciliation, and that, ‘if improperly and heedlessly conducted, the trials of Khmer Rouge leaders would panic other former Khmer Rouge oﬃcers and rank and ﬁle, who have already surrendered, into turning back to the jungle and renewing the guerrilla war in Cambodia’.43 In January 999, Hun Sen had ﬁnally agreed to the principle that a tribunal should judge the Khmer Rouge. However, he believed that the period to consider should not be restricted to 975 to 979 but that it should extend to the period 970-975, during which nearly one million Cambodians died as a result of the US bombing, and the period 979-998. He did not specify the type of tribunal and its competence. In a letter to the Secretary-General dated 24 March 999, Hun Sen stated that an existing national tribunal of Cambodia should take up the case to charge and convict Ta Mok and other Khmer Rouge leaders if found guilty of crimes of genocide in Cambodia, under article 33 of the Cambodian Constitution and article VI of the Genocide Convention. Assistance of legal experts from foreign countries would be welcome, in order to ensure that the Cambodian tribunal meets international standards. It will be up to the tribunal to determine the number of these legal experts. The tribunal ‘will enjoy complete independence from the executive and legislative powers’.44 The Secretary-General then reminded the Cambodian Foreign Minister that the group of experts had carefully considered the feasibility of a national tribunal, but concluded that the Cambodia judiciary in its current state was unlikely to meet minimal international standards of justice, even with external assistance. Koﬁ Annan added that, in his view, the trial of a single Khmer Rouge military leader which would leave the entire political leadership unpunished would not serve the cause of justice and accountability: ‘Impunity is unacceptable in the face of genocide and other crimes against humanity’. His ﬁrm view was that the tribunal in question must be international in character. However, the success of any international tribunal of whatever character presupposes the full cooperation of the government of Cambodia. On 8 April 999, Hun Sen aﬃrmed to US Senator John Kerry that, to meet international standards, the trial of Ta Mok would be conducted by the existing national court with the assistance of foreign countries, in which foreign judges and prosecutors

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would be allowed to take part. The indictment and prosecution of other Khmer Rouge leaders were to be within the sole competence of the court.45 According to a UN plan issued in August 999, a joint tribunal would have either ﬁve judges, two of them Cambodians, or seven judges, three of them Cambodians. The UN Secretary-General would select an independent prosecutor and the international judges. The UN had thus abandoned the earlier proposal of an international tribunal. In October, Hun Sen endorsed a US initiative reversing the proportions of Cambodian and international judges: three Cambodian judges and two UN-appointed judges. At least one of the international judges would have to agree with any verdict passed by the tribunal. In January 200, the Cambodian General Assembly approved the creation of the tribunal. In a concession to Hun Sen, the Assembly speciﬁed that only ‘those persons who are most responsible’ could face the tribunal. On 0 August 200, King Norodom Sihanouk promulgated the law creating the special joint court, a Cambodian court with an international character. The Cambodian government and the UN would still have to agree to the terms of a memorandum of understanding.46 However, the UN secretariat found that the law had serious shortcomings and, following long and fruitless negotiations with the Cambodian government, in February 2002, the UN Secretary-General concluded that he was no longer in a position to continue them.47 On 8 December 2002, the UN General Assembly, by Resolution 57/228, requested the Secretary-General to resume negotiations, without delay, to conclude an agreement with the government of Cambodia, based on previous negotiations on the establishment of the Extraordinary Chambers in the Courts of Cambodia for the prosecution of crimes committed during the period of Democratic Kampuchea, recommending that the Chambers should have personal jurisdiction over the senior leaders of Democratic Kampuchea and those who were most responsible for those crimes. In his report of 3 March 2003 to the General Assembly,48 the SecretaryGeneral recalled the terms of General Assembly Resolution No. 57/225 also adopted on 8 December 2002 on the ‘Situation of human rights in Cambodia’, which (in part) noted ‘with concern the continued problems related to the rule of law and the functioning of the judiciary resulting from, inter alia, corruption and interference by the executive with the independence of the judiciary’. He also recalled his experience in the previous negotiations when the government of Cambodia had ‘exhibited a lack of urgency, together with an absence of the active and positive commitment to the process that would be essential when it came to implementing any agreement and to establishing the Extraordinary Chambers, making them operational and ensuring their sustained operation’. In submitting the ‘Draft Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian Law of crimes committed during the period of Democratic Kampuchea’ to the General Assembly dated 7 March 2003, the Secretary-General still said that he would have very much preferred that it provided for both the Extraordinary Chambers to be composed of a majority of international judges.

Mixed National-international Tribunals

On 28 March 2003, the Cambodian Cabinet had already approved the Draft Agreement. On 3 May 2003, the General Assembly approved by consensus the Draft Agreement, and also decided that the expenses of the Extraordinary Chambers to be defrayed by the UN would be borne by voluntary contributions, not by the regular budget of the UN.49 The Agreement

The main features of the Agreement are summarized hereunder. The Preamble of Resolution 228B recalls, in part, that the Cambodian authorities had requested assistance from the UN in bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 7 April 975 to 6 January 979. To this end, Extraordinary Chambers are to be established, with international assistance, within the existing court structure of Cambodia. The purpose of the Agreement is to regulate the cooperation between the UN and the Cambodian government in this process (Art. ). The Agreement recognizes that the Extraordinary Chambers in the Courts of Cambodia for the prosecution of the crimes and violations created under Cambodian law have personal jurisdiction over senior leaders of Democratic Kampuchea and those who were most responsible for the crimes referred to in Article  (Art. 2). – Judges Cambodian judges, and judges appointed by the Supreme Council of the Magistracy upon nomination by the UN Secretary-General (international judges) serve in the two Extraordinary Chambers. The UN Secretary-General forwards a list of not less than seven nominees for international judges from which the Supreme Council appoints ﬁve to serve in the two Chambers. The Trial Chamber is composed of three Cambodian judges and two international judges; the Supreme Court Chamber, serving as both appellate chamber and ﬁnal sentence, is composed of four Cambodian judges and three international judges (Art. 3). – Decision-making If unanimity is not achieved, a decision by the Trial Chamber requires the afﬁrmative vote of at least four judges – a decision by the Supreme Court requires the aﬃrmative vote of at least ﬁve judges. Non-unanimous decisions of Chambers will contain the views of the majority and the minority (Art. 4). – Investigating judges One Cambodian and one international investigating judge serve as co-investigating judges. The UN Secretary-General submits a list of two nominees from

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which the Supreme Council appoints one as an international co-investigative judge, and one as a reserve international co-investigative judge (Art. 5). – Prosecutors One Cambodian prosecutor and one international prosecutor are competent to appear in both Chambers, serving as co-prosecutors. The UN Secretary-General forwards a list of two nominees from which the Supreme Council selects one international co-prosecutor and one reserve international co-prosecutor (Art. 6). – Settlement of diﬀerences between the co-investigating judges or the co.prosecutors A diﬀerence is settled by a Pre-Trial Chamber of ﬁve judges, three appointed by the Supreme Council, with one as President, and two appointed by the Supreme Council upon nomination by the Secretary-General. A decision of the Pre-Trial Chamber, against which there is no appeal, requires the aﬃrmative vote of at least four judges (Art. 7). – Oﬃce of Administration The Cambodian Director of this Oﬃce is appointed by the government. The international Deputy Director is appointed by the Secretary-General. He is responsible for the recruitment of all international staﬀ and all administration of the international components of the Extraordinary Chambers, the Pre-Trial Chamber, the co-investigating judges, the Prosecutors’ Oﬃce and the Oﬃce of Administration (Art. 8). – The Crimes The Extraordinary Chambers have jurisdiction over the crime of genocide as deﬁned in the 948 Genocide Convention, crimes against humanity as deﬁned in the 998 Rome Statute of the International Criminal Court and grave breaches of the 949 Geneva Conventions and such other crimes as deﬁned in Chapter II of the Cambodian Law promulgated on 0 August 200 (Art. 9). – Penalties The maximum penalty is life imprisonment (Art. 0). – Amnesty The government will not request an amnesty or pardon for any person investigated for or convicted of crimes under the Agreement. Regarding the one case of pardon granted to one person with regard to a 979 conviction on the charge of genocide, the scope of this pardon will be decided by the Chambers (Art. ). – Procedure and rights of the accused The procedure is in accordance with Cambodian law. In case of uncertainty, guidance may be sought in procedural rules established at the international level. The Chambers exercise their jurisdiction in accordance with international

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standards of justice, fairness and due process of law, as set out in Articles 4 and 5 of the International Covenant on Civil and Political Rights, to which Cambodia is a party (Art. 2). The rights of the accused as enshrined in these Articles should be respected. In particular, the accused has the right to engage counsel of his or her own choosing (Art. 3). – Premises and Cambodian personnel The government provides at its expense the premises for the judges, the Prosecutor’s Oﬃce, the Chambers, the Pre-Trial Chamber and the Oﬃce of Administration (Art. 4). Salaries and emoluments of Cambodian judges and other Cambodian personnel are defrayed by the government (Art. 5). – International personnel and other UN ﬁnancial assistance The UN is responsible for the salaries and emoluments of international judges, the international co-investigating judge, the international co-prosecutor and other personnel recruited by the UN. The UN is also responsible for the costs of utilities and services as agreed between the UN and the government, remuneration of defence counsel, witnesses’ travel from within Cambodia and from abroad (Art. 6, 7). – Article 8 refers to the Inviolability of archives and documents, Articles 9 and 20 to the Privileges and immunities of international and Cambodian personnel. – Article 2 provides protection to the counsel of a suspect or accused against any measure by the government which may aﬀect the free and independent exercise of his or her functions. Articles 22 and 23 provide protection of witnesses, experts and victims. – Languages The oﬃcial language of the Chambers is Khmer. The oﬃcial working languages of the Chambers are Khmer, English and French. Translations and interpretation into Russian may be provided by the government at its expense (Art. 26). – Withdrawal of cooperation Should the government change the structure or organization of the Extraordinary Chambers or otherwise cause them to function in a manner that does not conform with the terms of the Agreement, the UN reserves the right to cease to provide assistance, ﬁnancial or otherwise (Art. 28). – Financing Estimated costs for three years operations (personnel, furniture and equipment, travel, general operating expenses) amount to approximately $9.8 million.50

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Recent developments

In December 2003, former Khmer Rouge president Khieu Samphan (aged 73), belatedly acknowledged that mass killings did take place under the Khmer Rouge regime. However, he pleaded ignorance: in a letter sent to local media, he said that he only recently became aware of some of the killings after seeing a ﬁlm about the notorious S-2 interrogation and torture center in Phnom Penh. According to Reuters,5 Khieu Samphan said: ‘Between 976-78 I was not aware and I did not hear about S-2 at all, but now I understand that S.2 was a state institution located in Phnom Penh. It was part of the regime’. Out of the more than 0 000 S-2 prisoners, only seven survived. Two of the Khmer Rouge have been in detention in Cambodia since 999: Former military chief Ta Mok, and Duch, head of the S-2 center. Other likely defendants are Khieu Samphan, ‘Brother No. Two’ Nuon Chea and former Foreign Minister Ieng Sary. A UN team arrived in Cambodia in March 2004 to help with practical arrangements for launching the Tribunal, which is expected to start its work during the year, subject to ﬁnal approval by the Cambodian Assembly. The Executive secretary of the Cambodian government’s task force said in March that the Tribunal will operate for three years.52 Assessment

Hun Sen has won: the Khmer Rouge genocide will not be judged by an international tribunal but by a Cambodian court with minority international judges: even the selection of the international judges and prosecutor is made by the Supreme Council of Cambodia. He has successfully obstructed and delayed negotiations with the UN to have his objectives satisﬁed. Only a handful of surviving Khmer Rouge leaders will be judged, giving de facto amnesty to the many lower level executioners. The long delays were caused initially by the reluctance of many countries, including the USA and China, to uncover Khmer Rouge atrocities while they had supported the regime. Delays were later caused by the conﬂict between the UN insistence on an independent international court, based on the fact that Cambodian courts are neither competent nor independent from government authorities – and Cambodian concerns for national sovereignty, Hun Sen’s insistence on peace and reconciliation at the cost of impunity of the senior Khmer Rouge leaders and the fear that former senior members of the Khmer Rouge now serving in the government could be prosecuted by an independent tribunal. The Secretary-General’s preference for a majority of international judges has not been accepted by the UN General Assembly. The text of the ﬁnal Agreement has corrected some, but not all, of the concerns of the UN and NGOs regarding respect for international standards of fair justice.

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Following receipt of the Draft Agreement of 7 March 2003, Amnesty International (AI) has identiﬁed some of the weaknesses of the Agreement,53 in a failed eﬀort to have the Draft Agreement amended. On Article , AI felt that the text needed to ensure that amnesties or pardons were totally excluded. Indeed, Art. .2 does not reverse the pardon granted to one person (Ieng Sary) but only states that the ‘scope of this pardon is a matter to be decided by the Extraordinary Chambers’. AI was rightly concerned that the cumbersome decision-making mechanisms requiring a ‘supermajority’ decision lead to a potential for conﬂict along national lines (or rather between national and international judges). AI deplored the scant provisions for victim and witness protection, and the absence of provisions on reparations. More generally, AI believed that the tribunal will be ﬂawed because the Cambodian judiciary is not independent and that the majority of the judges will be Cambodian. On the positive side, a few senior Khmer Rouge leaders will be judged and historical facts about the genocide will ﬁnally become public both nationally and internationally. Should the Cambodian government apply undue pressure or inﬂuence over the Chambers, the UN still has an option which would be a public international aﬀront and censure to Hun Sen: leaving the trial to Cambodian judges. East Timor (now Timor Leste): the Serious Crimes Unit As referred to in Chapter , in 999, the UN organized a referendum in which the East Timorese voted for independence. In response, the Indonesian National Army and pro-Indonesian Timorese militias began a campaign of violence and arson, murdering from  000 to 2 000 persons and forcing 500 000 to ﬂee their homes.54 UN Security Council Resolution 272 of 25 October 999 established the UN Transitional Administration in East Timor (UNTAET) endowing it with overall responsibility for the administration of East Timor, exercising all legislative and executive authority, including the administration of justice. The resolution condemned all violence and acts in support of violence in East Timor and demanded that those responsible for such violence be brought to justice. In the Secretary-General’s Report to the Security Council dated 7 April 2002, the Secretary-General stated, in part, that the UN Mission of Support in East Timor Serious Crimes Unit would focus its investigations on those persons who had organized, ordered, instigated or otherwise aided in the planning, preparation and execution of the crimes. East Timor became independent in May 2002. In independent East Timor, the Unit is a section of the Oﬃce of the General Prosecutor of the Democratic Republic of East Timor. The Unit currently investigates and prosecutes cases of crimes against humanity in widespread or systematic attack against civilians as well as individual oﬀences of murder, rape, torture and other crimes committed in East Timor

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between  January and 25 October 999. In 2003, the Unit had 0 staﬀ members consisting of 42 international UN staﬀ, including prosecutors, investigators, forensic specialists, translators and supporting staﬀ – as well as 23 UN police investigators and 45 UN national staﬀ. In addition,  East Timorese trainee prosecutors, case managers, information technology and data coding staﬀ and investigators work in teams with international UN staﬀ at the Unit. UNTAET set up a Special Panel of Judges at Dili District Court to hear cases of serious crimes committed in 999. The Panel consists of two UN international judges and one East Timorese judge. A second Panel started in 2003. Since the Unit started work in 200, 49 indictments have been ﬁled at the Special Panels, against 78 indictees. In 2003, 06 of those remain free in Indonesia. Since trials started at the Special Panel in 200, there have been convictions of 32 accused persons which have included East Timorese soldiers in the Indonesian army and militia commanders.55 On 24 February 2003, the Deputy General Prosecutor ﬁled an indictment charging the following individuals with crimes against humanity committed in East Timor in 999: General Wiranto, former Defence Minister and Commander of the Armed Forces of Indonesia; three Indonesian generals, two colonels, one LieutenantColonel and the former Indonesian Governor of East Timor. All the accused have been charged with Crimes Against Humanity for Murder, Deportation and Persecution in that these crimes were all undertaken as part of a widespread or systematic attack directed against the civilian population of East Timor and speciﬁcally targeted on those who were believed to be supporters of independence for East Timor. The indictment alleges that the seven Indonesian military commanders, in their position of command authority, were responsible for the acts or omissions of their subordinates in the Indonesian military due to their failure to take reasonable measures to prevent such crimes or to punish the perpetrators. The indictment documents more than 280 murders based on over 500 witness statements and reports.56 Indonesia replied that it will ignore the indictment. The speaker of Indonesia’s legislative body said: ‘This is really degrading and oﬀensive to us. The request doesn’t make sense and insults the integrity of our country’. General Wiranto denied the allegations of crimes against humanity and questioned the legality of charges that hold him responsible for these crimes, because they came from outside Indonesia. He declared: ‘I have repeatedly told the people that I never planned or ordered people to commit crimes such as murder, torture, kidnap or deportation. I have tried many times to prevent those things from happening’.57 Following these and other indictments concerning Indonesian nationals, arrest warrants are requested from the Dili District Court, which are then forwarded to the Attorney General of the Republic of Indonesia. The arrest warrants are also forwarded to Interpol as East Timor joined the Interpol organization in 2002. In March 2004, the prosecutors of the Special Crimes Unit released to the media a 92-page court brief which has been ﬁled to support its application for

Mixed National-international Tribunals

an arrest warrant against General Wiranto. The Special Panel for Serious Crimes had so far granted only one arrest warrant: East Timor President Xanana Gusmao has criticized the indictments against Wiranto and others. He said that a harmonious relationship with Indonesia should be the priority for his country.58 The Indonesian government has not recognized the Special Crimes Unit and has refused to extradite any Indonesian accused by the Unit for trial in Dili. To a large extent, the judiciary process is thus frozen. Conclusion Mixed national-international criminal tribunals have been created as an alternative, as the ‘second best’ to genuine international criminal tribunals, or, more positively, as an expected improvement over unwilling or incapable national tribunals. The reluctance of the Western permanent members of the Security Council to still create more costly, fully international criminal tribunals played a role in the creation of these new tribunals. In all three examples given in this Chapter, the substantial cause of their creation was the evidence of grave breaches of international humanitarian law in a speciﬁc country or territory and, in Cambodia, the lack of any real national eﬀort to try the alleged perpetrators of the crimes. Sierra Leone, Cambodia and East Timor have a diﬀerent political history and cultures, diﬀerent governments, so that the created courts have diﬀerent characteristics in each of these countries. In the case of Cambodia, in spite of the particular heinous character of the organized massacres, the strong head of a poor country, largely dependent on UN and other external resources, has still been able to reduce international efforts to create an independent international tribunal to a national tribunal with minority international presence, which will only judge a few elderly leaders among the Khmer Rouge clique. In his long battle with the UN legal experts, Hun Sen’s open priority for peace and reconciliation has successfully overcome the other overriding priority that the main organizers and perpetrators of the genocide should be made accountable for their crimes: he has assured them impunity. The weakness of the main powers in this case are no doubt linked with their own participation or past support for the Khmer Rouge and their fear that the actions of their own leaders may be internationally exposed. Sierra Leone is a positive counter-example. The government of a fragile country also poor and heavily dependent on UN support and external resources has asked the Security Council for assistance in creating a nationally and internationally credible, independent, tribunal. The Special Court, a mixed nationalinternational court, is composed of a majority of international judges, a minority of Sierra Leone judges and its prosecutor has been appointed by the UN Secretary-General. The international majority should ensure a better respect of international justice norms. Its jurisdiction is based on both international humanitarian law and Sierra Leonean law. Its Statute contains two important innovations: the speciﬁc provisions applying to the Court’s jurisdiction over persons between

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5 and 8 years of age at the time of the alleged commission of a crime, i.e the stress on rehabilitation, reintegration, education in preference to detention – the reference, in article , to the accountability of peacekeepers alleged to have committed transgressions. The necessary relationship and cooperation to be initiated and maintained between the Special Court’s Prosecutor and the National Truth and Reconciliation Commission , including the use of the Commission as an alternative to prosecution, and the prosecution of juveniles, is also particularly noteworthy. It is hoped that it will create, as in South Africa, a broader system including both criminal justice and non-judiciary truth and reconciliation. The limitation of its jurisdiction to the prosecution of ‘persons who bear the greatest responsibility for serious violations of international humanitarian law ... ’ is reasonable, considering the Court’s limited staﬃng and funding. A similar formulation could have helped both the ICTY and ICTR to initially focus more quickly on the senior level suspects, rather than on ‘small ﬁsh’. East Timor, ﬁrst as a UN-administered territory, now an independent country, has set up its own judicial system with UN assistance, a system which was totally disrupted by the Indonesian violence. The Dili Serious Crimes Unit , a small mixed national/international body, has done a creditable job in investigating and indicting several high-level Indonesian oﬃcers. However, the Unit’s performance has suﬀered from a lack of investigative continuity, a lack of resourses, a lack of outreach to the overwhelmingly rural and illiterate population.59 More importantly, political considerations have hampered the judiciary process, so that only a few low-level Indonesian and East Timorese suspects have been tried, or are likely to be tried. Indonesia has denied all wrongs, passed an amnesty law and rejected all proposals to set up a genuine international human rights tribunal, on the implausible ground, as in Cambodia, that its judiciary was independent, willing and able to try those responsible for the violence and atrocities. The light sentences or acquittals rendered by the Indonesian Ad Hoc Human Rights Court show that Indonesian senior military responsible for the campaign of terror in East Timor will continue to enjoy total impunity. As for the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, these three tribunals are not immune to internal or international political pressures: in fact, the ICTY and ICTR were created by a political body, the UN Security Council, and the creation of the three mixed national-international tribunals was the outcome of national crises with international involvements or repercussions. All the tribunals suﬀer from their lack of eﬀective powers of arrest of accused on an international basis, the absence of an eﬀective international police. It is too early to decide whether the Sierra Leone Special Court and the East Timor Dili Court, with their built-in majority of international judges, are ‘models’: they are still temporary, experimental judicial bodies, and experience shows that each case is diﬀerent and may call for diﬀerent solutions. How should they be judged? In Justice Robertson’s words, ‘success will be judged by the Court’s record in doing justice, expeditiously and fairly; a wrongful or wrongfully conviction would amount to a “failure” – and one which would

Mixed National-international Tribunals

have the results of denigrating the Court and ... the donors who supported its justice mission’. This is a basic premise, albeit there will always be critics of a Court’s record, and diﬀerent assessments of ‘right’ or ‘wrong’ convictions. Another important criterion will be the extent to which the internationalized domestic tribunal has not only ensured accountability, but has contributed signiﬁcantly to the building or strengthening of the national justice system. The fact that the mixed national-international tribunals are much less costly than the fully international criminal tribunals60 is one reason why the former were created, but costs should not be taken as a key argument and condition for achieving justice. One open question is whether future situations where the most serious crimes of international concern have been committed will be submitted to the International Criminal Court, or whether more temporary ad hoc international criminal courts and national-international courts will be created. In principle, the reason why the ICC was created as a permanent institution is precisely that it should assume responsibility for such situations, at least for those involving States Parties to the Rome Statute. The next two Chapters will review the contents of this Statute, the ﬁrst steps of the Court, the support given by its friends and the reasons and possible impact of the US opposition to the Court. Notes  2

3 4

5

6 7

8

9

See ‘Sierra Leone – UNAMSIL Background’, , 2 November 2000. Nick Birnback, ‘Sierra Leone’, in John Tessitore and Susan Woolfson (eds), A Global Agenda, Issues Before the 54th General Assembly of the United Nations, An Annual Publication of the UN Association of the USA (Rowman & Littleﬁeld Publishers, Inc., Lanham/New York/Boulder/ Oxford, 999), pp. 6-8. UN News Wire, 2 August 999 – Le Monde, 30 November 999. . Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, July, 999, UN Doc. S/999/777, 2 July 999, Art. IX(2), XXVI( ). Security Council resolution 260(999) adopted on 20 August 999 – IHT, 27 July 999, Le Monde, 4 August 999. See also HRW Letter of 9 May 2000, . Security Council res. 306 (2000), 5 July 2000 – res. 343 (200), 7 March 200. See HRW’s ‘Expedited UN Criminal Tribunal Urged, Letter to UN Security Council on Sierra Leone’, , 9 May 2000 – ‘Decisive UN action on Sierra Leone urged’, , 20 June 2000 – IHT, 2 June and 29-30 July 2000. UN Doc. S/2000 95 dated 4 October 2000, Annex ‘Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone’, Enclosure ‘Statute of the Special Court for Sierra Leone’. UN Doc. S/2000/234, 22 December 2000.

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0 Letter from the Secretary-General to the President of the Security Council, UN Doc.

 2

3 4 5 6 7 8 9 20 2 22

23 24 25

26 27 28 29

30 3 32

33 34

S7200/693, 3 July 200. However, the Court would be established once the Secretary-General had ascertained that suﬃcient contributions were in hand. See ‘Sierra Leone: UN, Government sign historic accord to set up special war crimes court’, UN News Center, 6 January 2002. Art. .2 and 3 prescribes that transgressions by peacekeepers and related personnel shall be within the primary jurisdiction of the sending state, unless that state is unwilling or unable to investigate or prosecute. See Ambassador John Negroponte’s testimony before the US Congress on  April 2004 . afrol News, 4 June 2003, . Daily Bulletin, US Mission to the UN in Geneva, 7 July 2003. International Herald Tribune, 26 November 2003, The Economist, 6 December 2003. Special Court for Sierra Leone, Press Release, 27 January 2004. Case No. SCSL-2004-4-PT, ‘Summary of decision’, 3 March 2004. Case No. SCSL-2004-5-AR 5, ‘Summary of decision’, 3 March 2004. Case No.SCSL-2004-4-AR72(E), ‘Summary of decision’, 3 March 2004. Ibid., ‘Separate opinion of Justice Geoﬀrey Robertson, 3 March 2004. See Amnesty International, ‘Special Court for Sierra Leone. A historic decision to reject amnesty for crimes under international law’, AI Index: AFR 5/006/2004, 8 March 2004, which also includes AI’s concerns about certain aspects of the Court’s reasoning in reaching that decision. Case No. SCSL-2004-5-PT, and SCSL-2004-6-PT, ‘Summary of decision’, 3 March 2004. ‘Summary of Decision on Immunity from Jurisdiction – Prosecutor v. Charles Ghankay Taylor’, Case Number SCSL-2003-0-I, 3 May 2004. ‘Summary of Decision on Preliminary Motion based on Lack of Jurisdiction (child recruitment) – Prosecutor v. Sam Hinga Norman’, Case Number SCSL-2003-4AR72(E), 3 May 2004. See Security Council res. 260 (999), para. 0, 20 August 999. UN Doc. S/2000/95, para. 8. TRC Act 2000, s. 6(). See ‘The Special Court for Sierra Leone: the ﬁrst eighteen months’ by Thierry Cruvellier, a French journalist, and Marieke Wierda, of the International Center for Transitional Justice, March 2004, . Avril McDonald, ‘Sierra Leone’s shoestring Special Court’, IRRC, March 2002, Vol. 84, No. 845, pp. 2-43. See Cruvellier and Wierda, op.cit., p. . See Art. 75 of the Rome Statute of the International Criminal Court, ‘Reparations to victims’ – Art. 24.3 of the Statute of the ICTY and Art. 23.3 of the Statute of the ICTR. Note 3, p. 3. For a more detailed historical description, see Beigbeder (999), pp. 95-0 and related references.

Mixed National-international Tribunals 35 UN Doc. A/34/49, ANNEX, August 979.

36 Article 4. of the International Covenant on Civil and Political Rights, which entered

into force on 23 March 976.

37 New York Times, 30 July 997 – Le Monde, 2 August, 25 October 997 and 7 April

998.

38 Res. 52/35, adopted without a vote on 2 December 997, paras. 3, 5, 6. The Special

Representative was Thomas Hammarberg, a Swedish diplomat.

39 IHT, 6 and 9 September, 3 December 996, 29 December 998, 8 March 999, – Le

Monde, 2-3 January 997, 7 April, 3 December 998.

40 The group consisted of Sir Ninian Stephen, a former Governor-General of Australia

4 42 43 44 45 46 47 48 49 50 5 52

53

54 55 56 57 58

and former judge of the ICTY, as chair; judge Rajsoomer Lallah, member of the Human Rights Committee and Steven R. Ratner, who had participated in the Cambodia settlement talks and served as a consultant to the US Department of State on bringing the Khmer Rouge to justice. See the article by Steven R. Ratner, ‘The United Nations Group of Experts for Cambodia’, The American Journal of International Law, Vol. 93, 999, pp. 948-953. The Expert Group Report is in UN Doc. A/53/850, ANNEX, 6 March 999. See Ratner’s article. UN Doc. A/53/850, S/999/23, 6 March 999. UN Doc. A/53/85, S/999/230, 3 March 999. UN Doc. A/53/875, S/999/324, 24 March 999. UN Doc. A/53/96, S/999/443, 9 April 999. IHT, 3 January 200 – Le Monde, 2-3 August 200. See ‘Report of the Secretary.General on Khmer Rouge trials’, UN Doc. A/57/769, 3 March 2003, para. 7. Ibid., paras. 3-4. Res. 57/228B and Press Release GA/035 of 3 May 2003. UN Doc. A/57/769 of 3 March 2003, paras. 56-7. See , 30 December 2003. ‘UN Delegation Report Progress in Plans for Khmer Rouge Tribunal’, by P. Falby, Voice of America, 8 March 2004, . Amnesty International, ‘Kingdom of Cambodia, Amnesty International’s position and concerns regarding the proposed “Khmer Rouge” tribunal’, . A detailed historical report is in Beigbeder (2002), pp. 94-99. East Timor ‘Serious Crimes Unit Update’ 2 February 2003, . East Timor ‘Serious Crimes Unit: Information Release on Crimes Against Humanity Charges’, , 25 February 2003. East Timor ‘Indonesia Ex-Military Chief Denies E. Timor Abuse Charges’, , 26 February 2003. ‘East Timor Prosecutors Press Bid to Arrest Ex-Indonesian Military Chief ’, Agence France Presse, 22 March 2004, .

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ence?’, Proceedings of an International Conference held at the University of Texas School of Law, November 6-7, 2003, Steven R. Ratner and James L. Bischoﬀ, Eds, pp. 25-32. 60 Costs for three years of the Sierra Leone Special Court are estimated at $75 million – cost for three years of the Cambodia Chambers is estimated at $9.8 million, as compared with approximately $20 million for the ICTY and $90 million for the ICTR, for only one year.

CHAPTER 6

THE INTERNATIONAL CRIMINAL COURT

On 7 July 998, the UN Diplomatic Conference held in Rome decided to establish a permanent International Criminal Court (ICC) by adopting its Statute by a vote of 20 in favour to seven against, with 2 abstentions. The USA, together with China, Israel, Libya, Iraq, Qatar and Yemen, voted against the establishment of the Court. The Russian Federation was among those states which abstained, although it signed the Statute on 3 September 2000. On 3 December 2000, the USA and Israel signed the Rome Treaty. The US signature was later withdrawn by the Bush administration. With the deposit of the sixtieth instrument of ratiﬁcation on  April 2002, the Rome Statute entered into force on  July 2002. As of 24 September 2004, 39 countries had signed the Statute and 97 had ratiﬁed it. Out of the latter: – 26 are African countries; –  are from Asia and the Paciﬁc Islands; – 39 are from Europe and the Community of Independent States (CIS); – 9 are from Latin America and the Caribbean; –  (Canada) is from North America; –  (Jordan) is from the Mediterranean and Middle East. The list of countries having ratiﬁed the Statute by 24 September 2004 is in Presentation 6..

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PRESENTATION 6.1 Ratiﬁcation Status of the ICC Statute by Regions As of 24 September 2004 Africa . Senegal, 2 February 999 2. Ghana, 20 December 999 3. Mali, 6 August 2000 4. Lesotho, 6 September 2000 5. Botswana, 8 September 2000 6. Sierra Leone, 5 September 2000 7. Gabon, 20 September 2000 8. South Africa, 27 November 2000 9. Nigeria, 27 September 200 0. Central African Republic, 3 October 200 . Benin, 22 January 2002 2. Mauritius, 5 March 2002 3. Democratic Republic of Congo,  April 2002 4. Niger,  April 2002 5. Uganda, 4 June 2002 6. Namibia, 20 June 2002 7. Gambia, 28 June 2002 8. Tanzania, 20 August 2002 9. Malawi, 9 September 2002 20. Djibouti, 5 November 2002 2. Zambia, 3 November 2002 22. Guinea, 4 July 2003 23. Burkina Faso, 6 April 2004 24. Congo, 3 May 2004 25. Burundi, 2 September 2004 26. Liberia, 22 September 2004 Asia/Paciﬁc . Fiji, 29 November 999 2. Marshall Islands, 7 December 2000 3. Nauru, 2 November 200 4. Cambodia,  April 2002 5. Mongolia,  April 2002 6. Australia,  July 2002 7. Timor-Leste, 6 September 2002 8. New Zealand, 7 September 2002 9. Samoa, 6 September 2002 0. Republic of Korea, 3 November 2002 . Afghanistan, 0 February 2003

The International Criminal Court Europe and Community of Independent States (CIS) . San Marino, 3 May 999 2. Italy, 26 July 999 3. Norway, 6 February 2000 4. Iceland, 25 May 2000 5. France, 9 June 2000 6. Belgium, 28 June 2000 7. Luxembourg, 8 September 2000 8. Germany,  December 2000 9. Austria, 28 December 2000 0. Finland, 29 December 2000 . Sweden, 28 January 200 2. Andorra, 30 April 200 3. Croatia, 2 May 200 4. Denmark, 2 June 200 5. Netherlands, 7 July 200 6. Serbia and Montenegro, 6 September 200 7. Lichtenstein, 2 October 200 8. United Kingdom, 4 October 200 9. Switzerland, 2 October 200 20. Poland, 2 November 200 2. Hungary, 30 November 200 22. Slovenia, 3 December 200 23. Estonia, 30 January 2002 24. Portugal, 5 February 2002 25. The Former Yugoslavia Republic of Macedonia, 6 March 2002 26. Cyprus, 7 March 2002 27. Bosnia and Herzegovina,  April 2002 28. Bulgaria,  April 2002 29. Ireland,  April 2002 30. Romania,  April 2002 3. Slovakia,  April 2002 32. Tajikistan, 5 May 2002 33. Greece, 5 May 2002 34. Latvia, 28 June 2002 35. Spain, 24 October 2002 36. Malta, 29 November 2002 37. Albania, 3 January 2003 38. Lithuania, 2 May 2003 39. Georgia, 5 September 2003 Latin America and the Caribbean . Trinidad and Tobago, 6 April 999 2. Belize, 5 April 2000

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3. Venezuela, 7 June 2000 4. Costa Rica, 30 January 200 5. Argentina, 8 February 200 6. Dominica, 2 February 200 7. Paraguay, 4 May 200 8. Antigua and Barbuda, 8 June 200 9. Peru, 0 November 200 0. Ecuador, 5 February 2002 . Panama, 2 March 2002 2. Brazil, 20 June 2002 3. Bolivia, 27 June 2002 4. Uruguay, 28 June 2002 5. Honduras,  July 2002 6. Colombia, 5 August 2002 7. Saint Vincent and the Grenadines, 3 December 2002 8. Barbados, 0 December 2002 9. Guyana, 24 September 2004 North America . Canada, 7 July 2000 The Mediterranean And Middle East . Jordan,  April 2002 Source: The International Criminal Court http://www.icc-cpi.int/statesparties.html, 24 September 2004

The adoption of the Rome Statute, after ﬁve weeks of diﬃcult, at times acrimonious negotiations, was, in the words of Koﬁ Annan, the UN Secretary-General a ‘giant step forward in the march towards universal human rights and the rule of law’. Amnesty International (AI) recognized that the Court would be a historic step forward for international justice but Pierre Sane, AI’s Secretary-General expressed his regret that a few powerful countries appeared willing to hold justice by threatening and bullying other states, and seemed sometimes to be more concerned to shield perpetrators from trial rather than producing a charter for victims. Those states which voted against the Statute and others which abstained expressed openly or discreetly their ﬁrm opposition to creating an international criminal court, formally as a protection of their national sovereignty, in reality as a shield against investigations and potential prosecution of their political and military leaders. The Statute has conﬁrmed the Nuremberg principle of individual criminal responsibility without any distinction based on oﬃcial capacity, and extended it over a comprehensive range of international crimes both in war and peace. For the ﬁrst time in an international judiciary instrument, the gender issue and concern for children are explicitly referred to in several articles. The Statute incorporates both retributive (sanctions to the accused found guilty) and restorative (reparations to the victim) justice.2

The International Criminal Court

Its Preamble recalls that, during the 20th century ‘millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’. It also recognizes that these ‘grave crimes threaten the peace, security and well-being of the world’, referring in part to the language in Chapter VII of the UN Charter. It expresses the determination ‘to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’. The Origins Gustave Moynier, one of the Swiss founders of the International Committee of the Red Cross, felt that the First Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 864, which had been widely ignored during the 870 Franco-Prussian war, needed a complement: he proposed in 872 the establishment of an international criminal court to deter violations of the Convention, and to bring to justice anyone responsible for such violations. This proposal was not considered by states.3 Between the two World Wars, a few scholarly and professional organisations and NGOs initiated and promoted the concept and the creation of an international criminal court. In 927, during the Paris Congress of the ‘Fédération internationale des ligues des droits de l'homme’, the Austrian League proposed to promote the creation of a ‘Permanent International Court of Moral Justice’, the action of which would ensure an eﬀective and international protection of human rights within the framework of the League of Nations. This proposal was adopted by the Congress and has been included as one of the main demands of the Federation since then. A ﬁrst reference to an ‘international penal tribunal’ was made in Article VI of the 948 Genocide Convention as an alternative to a competent national tribunal: Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

In part B of the same resolution adopted on 9 December 948 (Res. 260 (III)), the UN General Assembly considered that there would be an increasing need of an international judicial organ for the trial of certain crimes under international law and invited the International Law Commission (ILC) to study the desirability and possibility of establishing such an organ for the trial of persons charged with genocide or other crimes. The ILC was requested to pay attention to the possibility of establishing a Criminal Chamber of the International Court of Justice. Through the deliberate stalling of Member states, 50 years elapsed before the Court’s Statute was adopted. As noted by Lee,4 the explanations for the long delay are both political and legal. First, the prosecution and enforcement of the law are carefully guarded sovereign prerogatives: national jurisdiction prevails.

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Secondly, the subject matter relates to individual criminal responsibility for the most serious crimes, a matter in which important government departments, including defense, justice and the executive branches have a particular interest. These factors have made the subject matter extremely complex and sensitive. If an international court was to be established, a way had to be found to accommodate it without impairing national jurisdiction. In 950, the General Assembly set up a Special Committee to prepare a Draft Statute for an ICC, which produced a text in 95, revised in 953. The text was deferred over the next few years on the pretext that the crime of aggression had not been deﬁned. Among the ‘stalling’ states, the USSR and other Socialist countries were ideologically hostile to ‘bourgeois’ international justice. The issue was only raised again in 989, at the end of the Cold War, by Trinidad and Tobago in a Special Session of the General Assembly, proposing the creation of a specialized ICC for drug-related oﬀences. As requested by the General Assembly in 990, 992 and 993, the ILC prepared a Draft Statute in 993, revised in 994. In December 995, the General Assembly established a preparatory committee, again open to all Member states of the UN and UN agencies (Res. 50/46). The Committee was not only to discuss issues but also to draft texts, with a view to preparing a widely acceptable consolidated text of a convention for an ICC as a next step towards consideration by a conference of plenipotentiaries. The UN Diplomatic Conference was held in Rome from 5 June to 7 July 998, when the Statute was ﬁnally adopted. 60 states participated in the Conference, with the assistance of more than 20 intergovernmental organizations, 4 specialized agencies of the UN, and a coalition of more than 200 NGOs. In addition, 474 journalists were accredited to cover the event. The Statute was the ﬁnal result of battles and compromises between the determination of many ‘like-minded countries’ to set up an independent court, with the strong support of NGOs, and the opposition of states intent on limiting the autonomy of the future court. Among the reluctant states, the USA and France feared that their military personnel on peacekeeping missions might be indicted for war crimes by an overly independent court. The wishes of some countries were frustrated: among others, India, Turkey and Sri Lanka wanted to add the crime of terrorism among core crimes, other countries protested against the powers granted to the Prosecutor (China), or against the non-inclusion of the death penalty (Singapore). On the last day of the Conference, when the draft Statute was about to be adopted, India put forward two amendments. The ﬁrst was to deprive the Security Council of the power to refer situations to the Court and to request the Court to defer investigation or prosecution. The second was to include the use of nuclear and other weapons of mass destruction in the list of war crimes. The US proposed an amendment which sought to limit the Court’s jurisdiction to those cases when only the state of the accused had accepted the jurisdiction of the Court. These amendments were rejected by a ‘no action’ motion proposed by Norway, thus allowing the adoption of the Statute on the same day. In spite of the Statute’s imperfections, in spite of these reservations and objections, its adoption was a considerable success for the promoters of interna-

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tional criminal justice and for those who believe that crimes committed, ordered or allowed by high-level leaders should not remain unpunished. The creation and functioning of the ICTY and ICTR had already proved that international criminal tribunals were a working proposition. However, the jurisdiction of both tribunals is limited and their creation by the Security Council has been criticized. Also, the Security Council appeared unwilling to create more ad hoc international criminal tribunals. Hence, the need for a permanent International Criminal Court with quasi-universal jurisdiction. Some of the factors contributing to the success of the Rome Conference include: – following the Holocaust, the development of a human rights regime since 948; – the need to sanction more eﬀectively violations of the Hague and Geneva Conventions; – the incapacity of the ‘international community’ to prevent or stop genocides (in Cambodia and Rwanda) and other grave breaches of international humanitarian law in many countries; – the greater visibility of these crimes through broad media exposure in many countries; – the growing feeling among populations that leaders should be accountable for their crimes; – the acknowledgement that national justice may be incompetent, that it is often unwilling to judge former or present leaders, that in many cases national justice is controlled by the executive; – the democratization of a number of former authoritarian or one-party states. – the growing visibility and inﬂuence of human rights and humanitarian NGOs; – and ﬁnally the determination of like-minded governments’ representatives, international law specialists, NGOs and other activists to obtain results in the Rome Conference. The main features of the Statute are summarized hereunder, together with comments. The Rome Statute Status of the Court

The Court is a permanent institution with the power to exercise jurisdiction over persons for the most serious crimes of international concern. It is complementary to national criminal jurisdictions (Art. ). Unlike the Statutes of the ICTY and ICTR giving primacy to the international tribunals, national courts have primacy over the ICC in investigating and prosecuting crimes, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution. The

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ICC will make such a determination, a signiﬁcant and politically sensitive power, according to the following criteria: unwillingness may occur if national proceedings or decisions are made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the ICC – and/ or there has been an unjustiﬁed delay in the national proceedings – and/or the proceedings were not or are not being conducted independently or impartially. In order to determine inability in a particular case, the Court considers whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings (Art. 7). The Court is not part of the UN, unlike the International Court of Justice (ICJ) which is a principal organ of the UN – nor is it a subsidiary organ of the Security Council, as the ICTY and ICTR. However, the new Court has been brought into relationship with the UN through an agreement (Art. 2). There is a direct link between the ICC and the UN Security Council as shown below. Its seat is in The Hague, which is already the seat of the ICJ and of the ICTY (Art. 3). Established by treaty, and not by a decision of the Security Council as were the ICTY and ICTR, its Statute is not binding on non-ratifying states. Structure of the Court

The ICC is composed of the following organs: the Presidency – an Appeals Division, a Trial Division and a Pre-Trial Division – the Oﬃce of the Prosecutor and the Registry (Art.34). – The judges Its 8 judges are elected by secret ballot by the Assembly of States Parties for non-renewable terms of nine years. They should be persons of high moral character, impartiality and integrity who possess the qualiﬁcations required in their respective States for appointment to the highest judicial oﬃces. Their selection should take into account the need for the representation of the principal legal systems of the world, equitable geographical representation and, as an innovation over the formulation of the Statutes of the ICJ, the ICTY and the ICTR, a fair representation of female and male judges. The NGO Coalition for an ICC has called for vigilance in respect of female representation, based on the experience of the ICTY and ICTR. For instance, in March 200, a list of 25 candidates for 4 judicial posts at the ICTY included only one woman.5 Judges should have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in any similar capacity, in criminal proceedings; or, have established competence in relevant areas of international law such as international law and the law of human rights and relevant experience. States Parties should also include judges with legal expertise on speciﬁc issues, including, but not limited to, violence against women or children. They should have an excellent knowledge of and be ﬂuent in at least one of the working languages of the Court. No two judges may

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be nationals of the same State. The judges must be independent in the performance of their functions. The Appeals Chamber is composed of all the judges of the Appeals Division, three judges sit in the Trial Chamber, while the functions of the Pre-Trial Chamber are carried out either by three judges or by a single judge (Art. 36, 39, 40). The President and the First and Second Vice-Presidents, constituting the Presidency, are elected by an absolute majority of the judges for a term of three years. They are eligible for re-election once. The Presidency is responsible for the administration of the Court, with the exception of the Oﬃce of the Prosecutor (Art. 38). – The Oﬃce of the Prosecutor acts independently as a separate organ of the Court. It is responsible for receiving referrals and any substantiated information on crimes, for examining them and for conducting investigations and prosecutions before the Court. The Oﬃce is headed by the Prosecutor, assisted by one or more Deputy Prosecutors. The Prosecutors and Deputy Prosecutors should be persons of high moral character, highly competent in and have extensive practical experience in the prosecution or trial of criminal cases. They should have the same linguistic skills as the judges. The Prosecutor is elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The Deputy Prosecutors are elected in the same way from a list of candidates provided by the Prosecutor (Art. 42). – The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor. It is headed by the Registrar, as principal administrative oﬃcer of the Court. He exercises his/her functions under the authority of the President of the Court. He is assisted by a Deputy Registrar (Art. 43). The Prosecutor and the Registry are required by Article 44(2) in the employment of staﬀ to ‘ensure the highest standards of eﬃciency, competency and integrity’ and to respect the other criteria required for the selection of judges, mutatis mutandis. Before taking up their respective duties, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar make a solemn undertaking in open Court to exercise their functions impartially and conscientiously (Art. 45). – The Assembly of States Parties is the governing body of the Court. Each State Party has one representative to the Assembly who may be accompanied by alternates and advisers. Other States which have signed the Statute may be observers. The President of the Court, the Prosecutor and the Registrar or their representatives may participate, as appropriate, in meetings of the Assembly and of the Bureau. The Assembly considers and adopts, as appropriate, recommendations of the Preparatory Commission, provides management oversight to the

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Presidency, the Prosecutor and the Registrar regarding the administration of the Court, considers the reports and activities of the Bureau and takes appropriate action, considers and decides the budget of the Court, decides to alter the number of judges, considers any question relating to non-cooperation, and other relevant functions (Art. 2). The Bureau consist of a President, two Vice-Presidents and 8 members elected by the Assembly for three-year terms. The crimes

The ICC’s jurisdiction is limited to four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression (Art. 5, 6, 7, 8). However, ‘The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 2 and 23 deﬁning the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations’. This task has been entrusted to the Preparatory Commission and is subject to the review and approval of the Assembly of States Parties (see below). Article 6 of the Statute gives jurisdiction to the ICC over genocide as deﬁned in the 948 Convention on the Prevention and Punishment of the Crime of Genocide. In accordance with Article II of the Convention, 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: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inﬂicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Crimes against humanity have been listed and deﬁned in Articles 7. and 7.2 in detail for the ﬁrst time in an international treaty.6 They include murder, extermination, enslavement , deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of the fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, persecution against any identiﬁable group or collectivity on political, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law, in connection with any crime under the Statute, enforced disappearances of persons, the crime of apartheid, other inhumane acts of similar character intentionally causing great suﬀering, or serious injury to body or to mental or physical health. The deﬁnition of enslavement in Article 7(2)(c) recognizes that women and children are particularly at risk of being subject to the course of traﬃcking

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in persons, which is deﬁned as the exercise of the power attached to the right of ownership over a person. Unlike the Charters of the Nuremberg and Tokyo Tribunals, no link to armed conﬂict is required: crimes against humanity can be committed and prosecuted in either times of peace or armed conﬂict. In order to constitute crimes against humanity, the acts must have been part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. They must have been committed pursuant to or in furtherance of a State or organizational policy to commit such an attack (Art. 7.2(a)). Article 8 of the Statute gives the ICC 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. They include crimes committed both during an international armed conﬂict or in armed conﬂicts not of an international character. War crimes during an international armed conﬂict are deﬁned as grave breaches of the four Geneva Conventions of 949 and other violations of international humanitarian law, including violations recognized in The Hague Conventions and Protocol I to the Geneva Conventions. War crimes during internal conﬂicts include violations of the common Article 3 of the Geneva Conventions against civilians and violations of humanitarian law generally recognized in Protocol II of the Geneva Conventions. On war crimes, article 24 includes a controversial optional provision, introduced at the demand of the French delegation, under pressure by its military. A state, on becoming a party to the Statute, may declare that, for a period of seven years after the entry into force of the Statute for the state concerned, it does not accept the jurisdiction of the Court with respect to war crimes when a crime is alleged to have been committed by its nationals or on its territory: an assurance that national justice will do its work (during seven years) or a self-incriminating clause possibly meaning that alleged perpetrators of the concerned state will enjoy impunity for their war crimes for seven years, and only then be subjected to the Court’s jurisdiction? A signiﬁcant achievement of the Statute is to include in the war crimes the conscripting or enlisting of children under the age of 5 years into armed forces or groups or using them to participate actively in hostilities during international or non-international armed conﬂict (Art. 8(2)(b)(xxvi) and (e)(vii)). Prosecution

The Court has jurisdiction to prosecute individuals when: – Crimes have been committed in the territory of a state which has ratiﬁed the Statute; – Crimes have been committed by a citizen of a state which has ratiﬁed the Statute; – A state which has not ratiﬁed the Statute has made a declaration accepting the Court’s jurisdiction over the crime (Art.2.3);

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– Crimes have been committed in a situation which threatens or breaches international peace and security and the Security Council has referred the situation to the Court pursuant to Chapter VII of the UN Charter (Art. 3) The Court’s jurisdiction has no retroactive eﬀect. It has jurisdiction only over crimes committed after the Statute entered into force, i.e. as from  July 2002 and only with regard to a state’s ratiﬁcation, if it occurred later than  July 2002, unless that state has made a declaration under Article 2.3 (Art.). – Initiating prosecution The Court may initiate prosecution in the following cases, under the conditions stated above: . The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court (Art. 5); 2. States which have ratiﬁed the Statute may ask the Prosecutor to investigate a situation where one or more of the crimes have been committed within the jurisdiction of the Court, for the purpose of determining whether one or more speciﬁc persons should be charged with the commission of such crimes (Art. 4); 3. The UN Security Council, acting under Chapter VII of the UN Charter, can ask the Prosecutor to investigate a situation where one or more crimes appear to have been committed (Art. 3(b)). In such a case, the Court will have jurisdiction even if the crimes occurred in the territory of a state which has not ratiﬁed the Statute or was committed by the national of such a state. In all cases, only the Prosecutor, not states or the Security Council, assesses and decides whether to initiate an investigation and, based on its ﬁndings, whether to prosecute, subject to a decision by the Pre-Trial Chamber (Art. 5), and subject to the following limitations. Limitations of the Court’s powers

Although the Preamble of the Statute refers to an ‘independent’ Court, a number of qualiﬁcations limits the powers of the Court and in particular those of its Prosecutor, in contrast with the broad autonomy of the Prosecutor of the ICTY and ICTR: . The Court determines whether the case is or is not admissible on the grounds of the primacy of national courts and its limitations (Art. 7). 2. The Court may exercise its jurisdiction only for crimes committed on the territory of a State Party to the Statute, or of a State which has accepted the jurisdiction of the Court, or for crimes committed by a person who is a national of such a State (Art. 2). 3. The Prosecutor’s investigation has to be authorized by a Pre-Trial Chamber of the Court. The issue of a warrant of arrest of a person, based on the appli-

The International Criminal Court

cation of the Prosecutor, is also subject to approval by the Pre-Trial Chamber (Art. 57, 58). 4. As another limitation of the Prosecutor’s powers, no investigation or prosecution may be commenced or proceeded with for a period of 2 months after the Security Council, in a resolution adopted under Chapter VII of the UN Charter, has requested the Court to that eﬀect – that request may be renewed by the Council under the same conditions (Art. 6). In this respect, such a resolution will require a majority of nine votes, including the ﬁve permanent members of the Council: a single veto would annul such a request. Rights of the accused

The general principles of criminal law are conﬁrmed: nullum crimen sine lege – nulla poena sine lege – non-retroactivity ratione personae: ‘no person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute’ – individual criminal personality: the Court’s jurisdiction applies [only] to natural persons, not to groups, organizations or other collective entities (Art. 22, 23, 24, 25). Under Article 25(3)(b) and (c) of the Statute, anyone who orders, solicits or induces the commission of a crime within the jurisdiction of the Court, crime which in fact occurs or is attempted, or aids, abets or otherwise assists in its commission will be individually responsible and liable for punishment in accordance with the Statute. The Statute incorporates fundamental guarantees of the right to a fair trial recognized in the International Covenant on Civil and Political Rights of 966 and by the Statutes of the ICTY and ICTR, e.g. the right ‘to a fair and public hearing by a competent, independent and impartial tribunal established by law’ and ‘the right to be presumed innocent until proved guilty according to law’ (Art. 4. and .2 of the Covenant). Everyone is presumed innocent until proved guilty before the Court. For the ﬁrst time in an international instrument, Article 66(3) of the Statute expressly provides that in order to convict the accused, the ICC must be convinced of the guilt of the accused beyond reasonable doubt. The prosecution bears the burden of proof throughout the trial (Art. 66, 67). The accused must be informed of his right to a lawyer, to have one assigned in any case where the interests of justice so require and, if the accused cannot aﬀord a lawyer, to have free legal assistance (Art. 67()(d)). He may obtain witnesses and have them examined on an equal footing with the Prosecutor. Finally, persons convicted by the ICC have the right to appeal to the Appeals Chamber on any of the following grounds: procedural error, error of fact, error of law or any other ground that aﬀects the fairness or reliability of the proceedings or decision. The Prosecutor may also make an appeal on the grounds of procedural error, error of fact or error of law (Art. 8.). The Court has no jurisdiction over any person who was under the age of 8 at the time of the alleged commission of a crime (Art. 26). The Statute applies to all persons without any distinction based on oﬃcial capacity. Oﬃcial capacity as a Head of State or Government, a member of a Government or Parliament,

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an elected representative or a government oﬃcial do not exempt a person from criminal responsibility nor does it constitute a ground for reduction of sentence (Art. 27). The accused ‘shall be present during the trial’, thus conﬁrming the Statutes of the ICTY and of the ICTR. No trial in absentia is allowed except when the accused ‘continues to disrupt the trial’ (Art. 63). Rights of victims and witnesses

Under Article 54()(b), the Prosecutor is required, during the course of an investigation and prosecution to respect the interests and personal circumstances of victims and witnesses, including age, gender and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children. Both the Pre-Trial Chamber and the Trial Chamber must take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses (Art. 57(3) and 68()). Article 68(3) requires the ICC to permit the views and concerns of victims to be presented and considered at appropriate stages in the proceedings in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Appropriate stages of proceedings encompass the trial, sentencing, award of reparations and post-trial proceedings including the appeal, sentence reduction hearings, review and release hearings. Article 5 authorizes the Prosecutor to initiate investigations based on information from any source. Victims may make representations to the Pre-Trial Chamber. Women victims are implicitly or explicitly considered in several Articles of the Statute – some crimes may be committed against both men and women although most sexual crimes are likely to involve primarily women, some are gender-speciﬁc to women. Article 7() recognizes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and any other form of sexual violence of comparable gravity as crimes against humanity. It also expressly recognizes that the crime of enslavement includes, in particular, the traﬃcking in women and children (Art. 7.2( c )). Article 7()(h) states that persecution against any identiﬁable group or collectivity, on gender grounds, or other grounds that are universally recognized as impermissible under international law, if committed in connection with any other crime within the jurisdiction of the ICC, is a crime against humanity. Article 8.2(b)(xxii) provides that individual acts of the same crimes of sexual violence constituting a grave breach or violation of common Article 3 of the Geneva Conventions of 949 can be prosecuted as war crimes. Article 43(6) provides for the establishment of a Victims and Witnesses Unit in the Registry. It will provide protection measures, security arrangements and other appropriate assistance to victims, witnesses who appear before the Court and others, such as family members, who are at risk because of such testimony.

The International Criminal Court

Reparations

As an improvement over the Statutes of the ICTY and ICTR and a signiﬁcant innovation in international criminal justice, the Court will establish principles relating to reparations to, or in respect of, victims, including restitution, compensation, rehabilitation, satisfaction, guaranteed non-repetition, and any other type of reparations to victims it deems appropriate. The Court may issue an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims either directly or through a Trust Fund (Art. 75). Penalties

Applicable penalties include imprisonment not to exceed a maximum of 30 years, or life imprisonment when justiﬁed by the extreme gravity of the crime and the individual circumstances of the convicted person – and, in addition, as applicable, a ﬁne, a forfeiture of proceeds, property and assets derived directly or indirectly from the crime, without prejudice to the rights of bona ﬁde third parties (Art. 77). Sentences are subject to appeal by the Prosecutor or the convicted person – either party may apply to the Appeals Chamber to revise a ﬁnal judgement of conviction or sentence on established grounds (Art. 8, 84). Cooperation with states

The ICC, like the ICTY and ICTR, has no enforcement powers. Its arrest warrants can only be enforced by national authorities. It cannot seize evidentiary material, compel witnesses to give testimony, nor investigate the scene where crimes have been allegedly committed. The ICC will not have its own jails: sentences will have to be served in the facilities of State Parties which have volunteered to oﬀer these. For all these purposes, the Court will have to turn to national authorities and request them to take action. States Parties have a general obligation to cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court (Art. 86). However, Article 72 provides for an important exception: a state may refuse the disclosure of information or documents when such disclosure would, in the opinion of that state, prejudice its national security interests. States should then take steps to resolve such a matter by cooperative means, acting in conjunction with the Prosecutor, the Defence or the Pre-Trial or Trial Chamber. Financing the Court

The expenses of the Court and of the Assembly of States Parties are provided by assessed contributions made by States Parties – based on the UN scale of assessment for its regular budget. Additional funds will be provided by the UN in particular in relation to the expenses incurred due to referrals by the Security Council, and by voluntary funds (Art. 5, 6, 7).

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Signatures and ratiﬁcations

The Statute remained open for signature at the UN headquarters in New York until 3 December 2000. It is subject to ratiﬁcation, acceptance or approval by signatory States, their instruments are to be deposited with the UN SecretaryGeneral. The Statute is open to accession by all States. The Statute itself does not permit reservations (Art. 25 and 20). Amendments and Review of the Statute

After the expiry of seven years from the entry into force of the Statute, any State Party may propose amendments thereto. The Assembly of States Parties will decide whether to take up such proposals or convene a Review Conference if the issue involved so warrants. Seven years after the entry into force of the Statute, the Secretary-General of the UN will convene a Review Conference to consider any amendments to the Statute. The Conference will be open to those participating in the Assembly of States Parties and on the same conditions (Art. 2, 23). The Preparatory Commission for the ICC The Commission (PrepComm) was established by the Rome Conference and its creation endorsed by the UN General Assembly.7 All states invited to attend the Rome Conference were allowed to participate in the Commission, regardless of whether the state voted in favour of the Statute. As a result, the US initially participated actively and constructively in the discussions. However, following the installation of the Bush Administration, the former large US delegations were reduced to a bare-minimum two-person delegation. Observers to the Commission included representatives of organizations and other entities that have received a standing invitation from the General Assembly, representatives of interested regional intergovernmental organizations and other interested international bodies, including the ICTY and the ICTR. NGOs may also participate in the work of the Commission by attending its plenary and its other open meetings, receiving copies of the oﬃcial documents and making available their materials to delegates. The UN Secretary-General was requested by the General Assembly to make available to the Commission secretariat services, not including the preparation of working documents. The Director of the Codiﬁcation Division of the Oﬃce of Legal Aﬀairs of the UN acted as Secretary of the Commission. The Commission ﬁrst met at the UN headquarters on 6 and 22 February 999.8 At its ﬁfth session on 30 June 2000, the Commission adopted the ﬁnalized draft texts of the Rules of Procedure and Evidence and the Elements of Crime, as requested by the General Assembly. At its eighth session held from 24 September to 5 October 200, the Commission ﬁnalized the Draft Relationship Agreement between the Court and the United Nations, the Draft Financial Regulations, the Draft Agreement on the

The International Criminal Court

Privileges and Immunities of the Court, the Draft Rules of Procedure of the Assembly of States Parties. It also reviewed the budget for the ﬁrst year of the Court’s operation, the Host State Agreement and the Crime of Aggression.9 One of the more diﬃcult issues is the deﬁnition of the Crime of Aggression and the conditions for the exercise of the Court’s jurisdiction over this crime, a highly-charged political issue long-debated by the UN. Among the critical questions under discussion: whether the deﬁnition of the crime of aggression should include an illustrative or exclusive list of acts constituting aggression or should be more general; how to diﬀerentiate between individual criminal acts versus acts of the state as a whole; and whether the Security Council holds the primary or the exclusive authority to determine that a state has committed an aggression; whether there is a role for the International Court of Justice in such determination.0 These texts were then submitted to the Assembly of States Parties for review and approval, after the entry into force of the Statute. Building the Court The Assembly of States Parties has taken important decisions during its ﬁrst three sessions. The ﬁrst session of the Assembly of States Parties

The ﬁrst session of the Assembly took place at UN headquarters from 3 to 0 September 2002. HRH Prince Zeid Ra’ad Zeid Al Hussein was elected President of the Assembly. The Assembly adopted every document prepared by the Preparatory Commission without change and by consensus, with a few minor exceptions. The composition, functions and authority of the Assembly are detailed in Article 2 of the Statute. The main issues reviewed during this session are summarized hereunder. – Deﬁnition of the crime of aggression As prescribed in Article 5.2, The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 2 and 23 deﬁning the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

The appendix to the Preparatory Commission’s Report contained proposals for the elements of the crime of aggression. Wisely, the Assembly decided to establish a special working group on this crime, open on an equal footing to all States Members of the United Nations or members of specialized agencies or of the International Atomic Energy Agency, ‘for the purpose of elaborating proposals

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for a provision of aggression in accordance with paragraph 2 of article 5 of the Statute and paragraph 7 of resolution F adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 7 July 998’.2 The special group will then submit proposals to the Assembly of States Parties for its consideration at a Review Conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in the Statute. A wise move, as it extends consideration of this politically sensitive issue to all Member States of the UN, including non-states parties to the ICC. At the same time, this may oﬀer a dilemma to those states who oppose the creation of the Court, such as the USA: should they agree to participate in the special group, at the risk of appearing to soften their stance – or should they refuse participation, at the risk of maintaining a hard ideological position against international justice, and appearing to give impunity to aggressive states and leaders. Whatever the number of states which participate in the special group, as observed before, states will still ﬁnd it diﬃcult to reach agreement of the deﬁnition of the crime of aggression, as aggression is generally assessed case by case on the basis of political factors. – Election of the judges The provisions concerning the qualiﬁcations, nomination and election of judges are given in Art. 36 of the Statute. The Assembly adopted a Procedure for the Nomination and Election of Judges, the Prosecutor and Deputy Prosecutors3 and a Procedure for the election of the judges, expanding on the provisions of the Statute.4 In particular, the ASP determined that the procedure for the nominations of judicial candidates would apply mutatis mutandis to the prosecutor. The Election Procedure recalls that the persons elected to the Court will be the 8 candidates who obtain the highest number of votes and a two-thirds majority of the States Parties present and voting. Each State Party may vote for a maximum of 8 candidates subject to the following minimun voting requirements: (a) State Party shall vote for at least 9 candidates from list A and at least 5 candidates from list B;5 (b) Each State Party shall vote for at least: – 3 candidates from the Group of African States, – 3 candidates from the Group of Asian States, – 3 candidates from the Group of Eastern European States, – 3 candidates from the Group of Latin American and Caribbean States, and – 3 candidates from the Group of Western European and other States. The President of the Assembly is responsible for the election procedure.

The International Criminal Court

– Relationship Agreement between the Court and the United Nations The Assembly adopted the ‘Draft Relationship Agreement between the Court and the United Nations’ (Doc. ICC-ASP//3). Negotiations on the draft were conducted between the ICC Assembly of States Parties, and the UN. The Draft Agreement formally establishes a close relationship between the ICC and the UN, a relationship which already started with the birth of the Court. The 998 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court was the ﬁnal outcome of many years of discussions and negotiations within the UN, involving the UN General Assembly, the International Law Commission and other UN bodies. The UN SecretaryGeneral has warmly welcomed the creation of the Court. The UN Secretariat has provided essential legal and material support to the ﬂedgling Court. It has served as Secretariat to the Court until the ICC had its own secretariat in 2004. In the Preamble of the ICC Statute, the States Parties reaﬃrm the Purposes and Principles of the Charter of the United Nations and determine to establish ‘an independent permanent International Criminal Court in relationship with the United Nations system’. The Preamble of the Draft Agreement recalls these points and, in its General Provisions (Art. 2 ‘Principles’), the Agreement recognizes that the Court has international legal personality and aﬃrms that the UN and the Court respect each other’s status and mandate (Art. 2). It sets an obligation of cooperation and coordination between the two international bodies (Art. 3). Its Second Section deﬁnes the institutional relations to be established between the UN and the ICC, as represented by its President, its Prosecutor or its Registry. These follow the pattern of Agreements concluded between the UN and UN specialized agencies (mutatis mutandis), including reciprocal representation, exchange of information, consultation and cooperation in personnel arrangements, consultation on administrative cooperation (in order to avoid overlapping of facilities and services), the provision of conference services and facilities by the UN under terms and conditions to be deﬁned (Art. 4, 5, 8, 9, 0). The Court will have access to both the General Assembly and to the Security Council. The Court may attend and participate in the work of the UN General Assembly in the capacity of an observer, whenever matters of interest to the Court are under discussion. Whenever the Security Council considers matters related to the activities of the Court, the President of the Court or the Prosecutor may address the Council, at its invitation. Reciprocally, the UN will have a standing invitation to attend public hearings of the Chambers of the Court that relate to cases of interest to the UN (Art. 4). Upon request of the UN, the Registrar will provide information and documentation relating to pleadings, oral proceedings, judgements and orders, when the Court deems it appropriate. As an interesting point, a link is established between the ICC and the International Court of Justice (ICJ), through the UN, even though there is no statutory nor hierarchical relationship between the two global institutions (see Chapter 8). The ICC Registrar will furnish to the UN with the concurrence of the Court, any information relating to the work of the ICC requested by the ICJ. The Court will keep the UN informed about its proceedings in cases that involve crimes com-

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mitted against UN personnel (Art. 5). The Court may propose items for consideration by the UN General Assembly, the Security Council or other appropriate bodies (Art. 7). Separate arrangements will be made concerning funds provided by the UN under Art. 5 of the Statute, or costs and expenses resulting from the cooperation or the provision of services by the UN to the Court (Art. 3). Section III deals with ‘Cooperation and judicial assistance’. As a general provision, the UN (including its programmes, funds and oﬃces) undertakes to cooperate with the Court and to provide to the Court such information or documents as the Court may request under Article 87, paragraph 6 of the Statute. In the event that the disclosure of information or documents or other forms of cooperation would endanger the safety or security of current or former UN personnel or prejudice the security or proper conduct of any UN operation or activity, the Court may order, particularly at the request of the UN, appropriate measures of protection (Art. 5). Art. 6 asks for the cooperation of the UN if the Court requests the testimony of a UN oﬃcial (including its programmes, funds or agencies), in which case the UN will waive that person’s obligation of conﬁdentiality. The Court may authorize the UN Secretary-General to appoint a UN representative to assist any UN oﬃcial who appears as a witness before the Court. This provision is of special interest in view of the past diﬃculties experienced by the ICTY and the ICTR in obtaining the appearance and testimony of serving or former UN staﬀ in speciﬁc cases. Art. 7 ensures the transmission to the Prosecutor of written decisions of the Security Council referring a situation in which one or more crimes referred to in article 5 of the Statute appear to have been committed, as provided by Art. 3, paragraph (b) of the Statute. A decision of the Security Council requesting the Court not to commence or proceed with an investigation or prosecution under Art. 6 of the Statute, is to be transmitted by the Secretary-General to the President of the Court and to the Prosecutor. Failures of states to cooperate with the Court’s requests may be conveyed to the Security Council through the Secretary-General (Art. 7.3). Two articles oﬀer guarantees of conﬁdentiality. Art. 8.3 states that the UN and the Prosecutor may agree that the UN provide documents or information to the Prosecutor on condition of conﬁdentiality and solely for the purpose of generating new evidence and that such documents or information will not be disclosed to other organs of the Court or to third parties, at any stage of the proceedings or thereafter, without the consent of the UN. Art. 20 states that if the UN is requested by the Court to provide information or documentation in its custody, possession or control which was disclosed to it in conﬁdence by a state, an IGO or other international organization, the UN will seek the consent of the originator to disclose that information or documentation. The UN will waive the privileges and immunities of any person who enjoys such privileges and immunities necessary for the independent exercise of his or her work for the UN (presumably UN staﬀ member, peacekeepers and others employed directly or indirectly by the UN) alleged to be criminally responsible

The International Criminal Court

for a crime within the jurisdiction of the Court, if the Court seeks to exercise its jurisdiction over this person (Art. 9). Mundis6 has identiﬁed several potential legal problems raised by the Agreement. More generally, he submits that ... [t]he conclusion of cooperation agreements between the United Nations and the Court (or the Prosecutor) may not be a good idea on political grounds. Leaving aside any potential problems relating to conﬁdentiality and privileges, such agreements have the potentiality to turn the entire UN system into a ‘long-arm investigator’ of the prosecutor, which could negatively aﬀect UN peacekeeping and other functions. A party to a conﬂict would probably be loath to accept UN personnel, peacekeepers, or observers on its territory if such persons were likely to be called as witnesses before the trial chambers of the ICC. Moreover, the parties to the conﬂict (not to mention the UN personnel themselves) may be hesitant to hand over documentation or reports to the United Nations for fear that such information would later be presented in evidence at trial.

While this observation may be valid, the experiences of the ICTY and of the ICTR have shown that the relationships between an international tribunal and the UN and its staﬀ had to be clariﬁed. No doubt, as the ICC itself, the Agreement will be tested against political and administrative realities: further adjustments may then be required. On 3 September 2004, the UN General Assembly adopted a resolution approving the Draft Agreement and decided to apply it provisionally pending its formal entry into force. Before the Assembly took this decision, the US representative recalled his country’s well-known opposition to the ICC and some of its reasons for it. He said that the Rome Statute ‘diluted’ the work of the Security Council: his government would not join the consensus, but that position should reﬂect its commitment to the rule of law, not opposition to it.7 – Agreement on the Privileges and Immunities of the International Criminal Court This Agreement is based on the pattern of the Convention on the Privileges and Immunities of the United Nations and of the Convention on the Privileges and Immunities of the Specialized Agencies, then adapted to the speciﬁcities of international criminal tribunals.8 The Agreement provides the usual clauses of such agreements (Art. 3-): – inviolability of the premises of the Court; – entitlement of the Court to display its ﬂag, emblem and markings at its premises and on vehicles and other means of transportation used for oﬃcial purposes; – immunity of the Court, its property, funds and assets; – inviolability of archives and documents; – exemption of taxes, customs duties and import or export restrictions;

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– holding, transfer and conversion of funds, freedom from currency restrictions; – facilities in respect of communications. Speciﬁc privileges and immunities are provided to state representatives participating in the Assembly and its subsidiary organs, to representatives of states participating in the proceedings of the Court and to IGO representatives, while exercising their oﬃcial functions and during their journey to and from the place of meeting. These are generally the same immunities and facilities accorded to diplomatic envoys under the Vienna Convention. Judges, Prosecutor, Deputy Prosecutors and Registrar are granted the same privileges and immunities as are accorded to heads of diplomatic missions. The Deputy Registrar, staﬀ of the Ofﬁce of the Prosecutor and staﬀ of the Registry enjoy privileges, immunities and facilities ‘as are necessary for the independent performance of their functions’ (Art. 3-6). Among these: – immunity from personal arrest or detention and from seizure of their personal baggage; – immunity from legal process of every kind in respect of words spoken or written and all acts performed by them in their oﬃcial capacity, which immunity continues after termination of their employment with the Court; – inviolability for all oﬃcial papers and documents; – exemption from taxation on salaries and allowances paid by the Court; – exemption from national service obligations; – exemption from immigration restrictions or alien registration; – repatriation facilities. Protection, to diﬀerent extents, is accorded to locally-employed personnel, counsel and their assistants, witnesses, victims and experts (Art. 7-2). The Agreement states that the privileges and immunities are accorded to states’ representatives and IGOs not for the personal beneﬁt of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the work of the Assembly, its subsidiary organs and the Court. Consequently, States Parties not only have the right but are under a duty to waive the privileges and immunities of their representatives in any case where, in the opinion of those states, they would impede the course of justice and can be waived without prejudice to the purpose for which the privileges and immunities are accorded. States not party have the same duty regarding waiver (Art. 25). The privileges and immunities may also be waived: – in the case of a judge or the Prosecutor, by an absolute majority of the judges; – in the case of the Registrar, by the Presidency; – in the case of the Deputy Prosecutors and the Registry staﬀ, by the Registrar;

The International Criminal Court

– in the case of local employees, by the head of the organ of the Court employing such personnel; – in the case of counsel and persons assisting defence counsel, by the Presidency; – in the case of witnesses and victims, by the Presidency (Art. 26). This Agreement was opened for signature and ratiﬁcation by all states (including non- states parties to the ICC Statute) on 0 September 2002. The Agreement entered into force on 22 July 2004, after ten ratiﬁcations in accordance with Article 35. By September 2004, Slovenia, Liechtenstein and Estonia ratiﬁed the Agreement, bringing the number of ratiﬁcations to 6. 62 states have signed the Agreement. – Financial Regulations and Rules Three organs of the Court are given administrative duties. Responsibility for the administration of the Court is granted to the Presidency, with the exception of the Oﬃce of the Prosecutor: the Prosecutor has full authority over the management and administration of the Oﬃce, including the staﬀ, facilities and other resources.2 The Registry, as principal administrative oﬃcer of the Court, is responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the prosecutor.20 These provisions aim at preserving the judicial independence of the Prosecutor. The Assembly provides management oversight to the Presidency, the Prosecutor and the Registry regarding the administration of the Court, it considers and decides the budget for the Court.2 The Financial Regulations and Rules, adopted at the same session of the Assembly, give a central role to the Registrar: the Registrar is made responsible and accountable for ensuring that the Rules are administered in a coherent manner by all organs of the Court – a necessary mandate in view of the division of responsibilities in the Statute between three diﬀerent organs of the Court. In particular, the proposed programme budget for each ﬁnancial period is prepared by the Registrar on the basis of proposals by the Oﬃce of the Prosecutor and Heads of organizational units of other organs of the Court. The consolidated draft programme budget is then submitted to the Committee on Budget and Finance of the Assembly, to be ﬁnally approved by the Assembly.22 Other parts of the Financial Regulations and Rules concern appropriations, provision, custody and investment of funds, internal control, accounts and audit. – Budget The Assembly approved appropriations totalling 30 893 500 euros for the ﬁrst ﬁnancial period extending from  September 2002 to 3 December 2003. It decided that, for this ﬁrst period, it would adopt the respective scales of assessments of the UN applicable for the period 2002-2003, with adjustments to take into account the diﬀerence in membership between the UN and the Assembly.23 In another resolution,24 the Assembly requested governments, international

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organizations, individuals, corporations and other entities making voluntary contributions to declare that such contributions are not intended to aﬀect the independence of the Court. The Registrar should ensure that any oﬀered contributions will not aﬀect the independence of the Court and will fulﬁl any criteria that the Assembly may establish. – Trust Fund for the beneﬁt of victims of crimes The Assembly established a Trust Fund for the beneﬁt of victims of crimes within the jurisdiction of the Court, and of the families of such victims, in implementation of Art. 79 of the Statute.25 Under Art. 75 of the Statute, the Court will establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. The Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims. Under Art. 79.2, the Court may order money and other property collected through ﬁnes or forfeiture to be transferred to the Trust Fund. Under Article 77.2, ‘Applicable penalties’, in addition to imprisonment, the Court may order a ﬁne and/or a forfeiture of proceeds, property and assets derived directly or indirectly from a crime, without prejudice to the rights of bona ﬁde third parties. The Trust Fund will be ﬁnanced by – Voluntary contributions from governments, international organizations, individuals, corporations and other entities; – Money and other property collected through ﬁnes or forfeiture transferred to the Fund if ordered by the Court under Art. 79.2 of the Statute; – Resources collected through awards for reparations if ordered by the Court under Rule 98 of the Rules of Procedure and Evidence, – Such resources, other than assessed contributions, as the Assembly may decide to allocate to the Fund. The Assembly also decided to establish a Board of Directors of the Fund consisting of ﬁve members. The Registrar will be responsible for providing such assistance as is necessary for the proper functioning of the Fund, and will participate in meetings of the Board in an advisory capacity. For the ﬁrst time, a Trust Fund for Victims was established as an integral part of an international criminal tribunal, thus adding reparation to retribution. Besides allowing victims’s active participation in the judicial process, the creation of the Fund will provide concrete means by which the victims’ needs will be addressed. For instance, funds could be allocated for expenses such as medical costs, school fees for orphans, reconciliation projects for communities, or be redirected to NGOs and other groups for projects that will directly assist victims and their families. The Fund will be directed by a set of criteria to be determined by the Assembly.

The International Criminal Court

William Pace, convenor of the NGO Coalition for the ICC said: ‘The Victims Trust Fund is a historic eﬀort to widen the scope of justice to not only punish perpetrators, but also to restore dignity to victims’.26 – Elections During its ﬁrst resumed session held in New York from 3 to 7 February 2003, the Assembly elected the ﬁrst 8 judges for a term of three, six, and nine years, in accordance with Art. 36 and 2 of the Statute. Seven were elected from the Western European and other Groups of States, four from the Latin American and Caribbean Group of States, three from the Asian Group of States, three from the African Group of States, one from the Group of Eastern Europe. Seven are female and eleven are male judges.27 During the inaugural public session held in The Hague on  March 2003, the elected judges were sworn in before the President of the Assembly in a ceremony attended by the Queen of The Netherlands and by the UN Secretary-General. Also on  March, the judges elected the Presidency, in accordance with Art. 38 of the Statute. It is composed of Judge Philippe Kirsch (Canada) as President, Judge Akua Kuenyehia (Ghana) as First Vice-President and Judge Elizabeth Odio Benito (Costa Rica) as Second Vice-President. During the second resumption of the ﬁrst session of the Assembly, Mr Luis Moreno-Ocampo (Argentine) was elected by consensus as ﬁrst Prosecutor of the Court (Art. 42.4). On 6 June 2003, Mr Moreno-Ocampo pledged his solemn undertaking during an open session of the Court presided by its President, and witnessed by the President of the Assembly. On 4 June 2003, Mr Bruno Cathala (France) was elected ﬁrst Registrar by an absolute majority of the judges. He pledged his solemn undertaking on 3 July 2003 during an open session of the Court presided by its President and witnessed by the Vice-President of the Assembly.28 The second session of the Assembly of States Parties

This session was held at the UN headquarters in New York from 8 to 2 September 2003. In his oral report, Philippe Kirsch, the Court’s President said that the Court was no longer an aspiration, but a functioning institution. He added: ‘We are preparing to meet the challenge that is set for us by the international community: to ensure the even-handed and eﬀective delivery of justice and, in so doing, to conduct eﬃcient, transparent and fair proceedings’. Some of the main issues dealt with in this session are summarized hereunder. The Assembly approved the programme budget for 2004 in an amount of 53 07 846 euros and the Working Capital Fund in an amount of 4 425 000 euros.29 The Assembly established a Trust Fund for the participation of least developed countries in the activities of the ASP.30 During the second session, the Trust Fund provided 2 delegates with airline tickets, while the International Human Rights Law Institute of De Paul University (USA) provided accommodation and per diem to 22 delegates from those countries.

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The Assembly elected the following ﬁve members of the Board of Directors to the Victims Trust Fund, representing the ﬁve regional groups:3 – Queen Rania Al-Abdullah of Jordan – Mr Oscar Arias Sanchez, former President of Costa Rica – Mr Tadeusz Mazowiecki, former Prime Minister of Poland – Mme Simone Veil, former Minister of Health of France and former President of the European Parliament – Archbishop Desmond Tutu, former President of the Truth and Reconciliation Commission of South Africa. The choice and election of these eminent personalities give weight and credibility to the Victims Trust Fund, and to the ICC itself. The Assembly elected a Deputy Prosecutor for Investigations, Mr Serge Brammertz (Belgium) for a six-year term starting on 3 November 2003.32 Not unexpectedly, no progress was recorded by the Special Working Group on the Crime of Aggression. Discussions on the establishment of an International Criminal Bar were not conclusive. A resolution on the ‘Coordinating and facilitating role of the NGO Coalition for the International Criminal Court’ acknowledged the important contribution of the participating NGOs including the Coalition, to the creation and functioning of the Court.33 As the UN Secretariat ceased to function as the secretariat of the ASP, the Assembly acknowledged and expressed deep appreciation to the UN and to the Secretary-General for their outstanding support in the ICC’s establishment. The permanent secretariat of the ASP began functioning on  January 2004.34 A Resolution on staﬀ regulations was adopted by the Assembly.35 The regulations include such items as: staﬀ duties, obligations and privileges, post classiﬁcation, salaries. The next session of the ASP was held from 6 to 0 September 2004 in The Hague. The third session of the Assembly of the States Parties

This session met in The Hague, for the ﬁrst time, from 6 to 0 September 2004. Its main task was to review the Court budget proposals together with the recommendations made by the ASP Committee on Budget and Finance. The Assembly approved a budget totalling euros 66 784 200 for 2005, and decided that the Working Capital Fund would be set at euros 5 565 400 for the same year. It established a Contingency Fund in the amount of euros 0 million for the following purposes: to meet costs associated with an unforeseen situation following a decision by the Prosecutor, unavoidable expenses for developments in existing situations which could not be foreseen or could not be accurately estimated at the time of the adoption of the budget, or costs associated with an unforeseen meetings of the ASP.36

The International Criminal Court

The Assembly elected Ms. Fatou Bensouda (the Gambia) to the Oﬃce of Deputy Prosecutor for nine years, starting on  November 2004. It approved by consensus the negotiated Draft Relationship Agreement between the ICC and the UN. The fourth session of the ASP will be held in November 2005 in The Hague. The First Referrals of Situations Between July 2002 and July 2003, the Prosecutor received 499 communications sent by NGOs and individuals from 66 diﬀerent countries. Of those 499 situations communicated to the Court, 75 reports alleged atrocities and two-thirds of the reports were submitted by various actors within six countries: Germany, the US, France, the UK, the Netherlands and Spain. Reports were submitted by individuals and NGOs located in a total of 66 countries, 27 of which were not ICC States Parties. In a brieﬁng held on 6 July 2003, Prosecutor Moreno-Ocampo speciﬁcally rejected investigating situations outside the temporal, thematic or territorial limits of the Court’s jurisdiction, including communications on alleged aggression in Iraq. With only a handful of staﬀ, he announced that an examination into the Democratic Republic of Congo would be the only situation that his oﬃce would examine for the time being.37 By mid-2004, two governments – Uganda and the Democratic Republic of Congo – had referred the situation in their country to the ICC for investigation, and a third one – the Central African Republic – had announced that it would bring a case against its deposed President before the Court. In his address to the ASP at its third session, Prosecutor Moreno-Ocampo conﬁrmed that his Oﬃce had opened two investigations and that six situations, located in four diﬀerent continents, were being analyzed.38 Uganda

In December 2003, the President of Uganda, Yoweri Museveni, took the decision to refer the situation concerning the Lord’s Resistance Army (LRA) to the Prosecutor of the ICC: Uganda was the ﬁrst government to refer a case to the Court. According to the Rome Statute, the Prosecutor has to inform all States Parties to the Statute of the formal initiation of an investigation. Following this, the Prosecutor may seek an arrest warrant from the Pre-Trial Chamber. To take this step, the Prosecutor must determine that there is a reasonable basis to proceed with an investigation. The Prosecutor has determined that there was a suﬃcient basis to start planning for the ﬁrst investigation of the Court. Determination to initiate the prosecution will take place in coming months. Uganda has ratiﬁed the Rome Statute on 4 June 2002. Through its referral, the Uganda government is committed to cooperate with the ICC to investigate

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crimes, provide evidence, arrest and surrender persons sought by the Court, and protect witnesses and victims. President Museveni met with the Prosecutor in London in December 2003 to establish the basis for future cooperation between Uganda and the Court. A key issue will be locating and arresting the LRA leadership. The ICC Press Release39 noted that many of the LRA members are themselves victims, having been abducted and brutalized by the LRA leadership. In a bid to encourage LRA members to return to normal life, the Ugandan authorities had enacted an amnesty law. President Museveni told the Prosecutor that he intended to amend this amnesty so as to exclude the LRA leadership, ensuring that those bearing the greatest responsibility for the crimes against humanity allegedly committed in Northern Uganda are brought to justice. The Prosecutor will work with the Ugandan authorities, other states and international organizations in gathering the necessary information in order to determine whether there is a reasonable basis to proceed with an investigation. According to Human Rights Watch (HRW),40 the LRA has committed widespread abuses against civilians in Uganda, including child abductions, summary executions, torture, rape and sexual assault, forced labour, and mutilation. LRA abductions have recently reached record levels, with an estimated 0 000 children abducted since mid-2002 and forced to ﬁght, kill civilians, and abduct other children. Children who fail to comply with orders are murdered, often by other children who are forced to kill them. HRW has also reported on abuses by Ugandan government troops, the Ugandan People’s Defense Forces (UPDF). Violations committed by the UPDF include extrajudicial killings, rape and sexual assault, forcible displacement of over one million civilians, and the recruitment of children under the age of 5 into government militias. Richard Dicker, Director of the International Justice programme at HRW said: ‘President Museveni’s referral does not limit the Prosecutor’s investigation only to crimes allegedly committed by the LRA. The Prosecutor should operate independently and has the authority to look at all the crimes committed in Uganda’. The Democratic Republic of Congo

In July 2003, the Prosecutor ﬁrst announced that his oﬃce would ‘follow closely’ the situation in the Ituri region of the DRC, after receiving communications from individuals and NGOs monitoring the human rights situation there. On 8 September 2003, during the Second Assembly of States Parties, Prosecutor Moreno-Ocampo said that, as the UN Human Rights Special Rapporteur (Iulia Motoc) indicated the previous week, the crimes reportedly taking place in Ituri potentially constituted genocide, crimes against humanity or war crimes. Reports from NGOs estimated that at least 5 000 civilians had died as a direct consequence of violence in Ituri since  July 2002. The estimated total number of deaths from the beginning of the conﬂict in DRC ranges from 2.4 and 3.3 million people, as a consequence of the ﬁghting as well as indirect causes including star-

The International Criminal Court

vation, landmines, untreated injuries and diseases (including the transmission of HIV/AIDS through rape). These ﬁgures make this conﬂict the most devastating to civilians since the Second World War. Atrocities have continued to be committed in Ituri during 2003. According to the High Commissioner for Human Rights, there were 7 cases of arbitrary execution, 65 of rape, including child rape, 82 cases of abduction for sexual purposes, 27 cases of torture in Mambasa in mid-January 2003. Crimes speciﬁcally targeting women and children were widespread in the area, according to UNICEF. The Prosecutor was conscious of the peace process under way in the DRC and hoped that the eﬀorts of the international community to halt the violence would bear fruit. He hoped that the national system could be re-invigorated with assistance from the international community in order to enable the Congolese themselves to investigate and prosecute those responsible. He stood ready to seek authorization from a Pre-Trial Chamber to start an investigation under his proprio motu powers. However, his role would be facilitated by a referral or active support from the DRC. All States Parties can support the Court’s work by oﬀering security, police and investigative teams, giving intelligence and other evidence. For the Prosecutor, the investigation of ﬁnancial transactions, for example for the purchase of arms, may well provide evidence proving the commission of atrocities.4 Human Rights Watch has shared with the Court their important research on the situation in the Congo. On 0 November 2003, the Special Rapporteur on the DRC’s human rights welcomed the Prosecutor’s decision to make the DRC the ﬁrst State he investigates. At the same time, she said that ‘without eﬀective intervention by the international community, Ituri will be turned into a bloodbath’.42 The Deputy Prosecutor, Serge Brammertz, head of the Investigations Division of the Oﬃce of the Prosecutor has been given responsibility for the analysis of the situation in Ituri. On 9 April 2004, the ICC Prosecutor announced that he had received a letter from the President of the Democratic Republic of Congo (DRC) referring to him the situation of crimes within the jurisdiction of the Court allegedly committed anywhere in the territory of the DRC since the entry into force of the Rome Statute, on  July 2002. The DRC asked the Prosecutor to investigate in order to determine if one or more persons should be charged with such crimes. The authorities were committed to cooperation with the Court.43 On 23 June 2004, the Chief Prosecutor announced his decision to open the ﬁrst investigation of the ICC, over grave crimes allegedly committed in the DRC since  July 2002. His decision was taken after thorough consideration of the jurisdiction and admissibility requirements of the Rome Statute. He concluded that the investigation will be in the interest of justice and of the victims.44 Central African Republic

The FIDH (Fédération internationale des ligues des Droits de l’Homme), a Paris-based NGO, formally brought its ﬁrst case before the Court on 3 February

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2003.45 On 25 November 2002, one month after the coup d’Etat attempt of General Bozizé, the ex-Commander-in-Chief of the Central African Republic (CAR), against the Patassé regime, an FIDH investigation team took place in Bangui, the country’s capital. According to its report, the ﬁghting in the capital between 25 and 30 October 2002 was waged in a ﬂagrant violation of the laws and customs of war on the 949 Geneva Convention. The reprisals conducted by loyalist (government) forces against rebels and the civilian population were qualiﬁed by the team as war crimes. The Rome Statute was ratiﬁed by the CAR on 3 October 200. The FIDH considered that the lack of reaction of hierarchy superiors in order to prevent such crimes or to punish their authors, involves the individual criminal responsibility of Jean Pierre Bemba, Abdoulaye Miskine and Ange-Félix Patassé, President and Commander-in-Chief of the CAR Army. Patassé was ousted by Bozizé in a coup on 5 March 2003. On 27 August 2003, the CAR announced that it would bring its case against deposed President Patassé, wanted for rape, murder and massive embezzlement, before the ICC. CAR Attorney General said that an international warrant had been issued for the arrest of Patassé accused of ‘murder, rape, assault and battery, sharing intelligence with a foreign power and undermining the internal and external security of the state’ as well as embezzlement. By September 2004, the ICC Prosecutor had not yet announced whether he would initiate an investigation in the CAR. Conclusion In spite of the ﬁerce opposition of the US, the ICC has built up quickly its structure and deﬁned its procedures, and has started reviewing several situations referred to it. It took only four years for the Rome Statute, adopted on 7 July 998, to enter into force ( July 2002). By September 2004, 97 states had ratiﬁed the Statute. In the ICC’s ﬁrst operational year, the 8 judges were elected (February 2003), then the Prosecutor (April 2003), the Registrar (June 2003). The Deputy Prosecutor was elected in September 2003, and a second one in September 2004. The ﬁve members of the Board of Directors to the Victims Trust Fund Fund were also elected in September 2003. By the same date, 3 persons, representing 29 nationalities, had been recruited. Budgets for 2002-2004 and 2005 were approved. During its two sessions, the Assembly of States Parties has adopted the Rules of Procedure and Evidence, Elements of Crime, its own Rules of Procedure, Financial Regulations and Rules, the Agreement on the Privileges and Immunities of the Court, a Procedure for the nomination and election of judges, the Prosecutor and Deputy Prosecutor, the Staﬀ Regulations. It has established the Victims Trust Fund, a Trust Fund for the participation of least developed countries, its own Committee on Budget and Finance. The Netherlands has made premises available to the Court free of charge for a period of ten years as from July 2002. In a recent interview, Philippe Kirsch, the President of the Court, has rightly said that ‘the ﬁrst case is incredibly important’ and that the Court must demon-

The International Criminal Court

strate that it is only interested in practising and meeting the highest standards of justice.46 The credibility of the Court will ﬁrst be based on its respect and reliance on the Statute and on its own Rules of Procedure and Evidence. Basically, its credibility will depend on the professionalism and competence of judges and Prosecutors, on the judges’ impartiality and integrity, on the Prosecutors’ impartiality and ability to obtain the cooperation of states and international organizations, on the Registry’s eﬀective management, and on adequate ﬁnancing provided by its States Parties. As Judge Kirsch also said, the Court is both independent and interdependent: it cannot act alone. It will achieve eﬃciency only if it works closely with other members of the international community. The Court will be deemed eﬀective if it conducts its investigations and trials within a reasonable time span, if due process requirements are respected, and if judgments and sanctions are considered fair and equitable. Besides these onerous legal and technical requirements, the action and decisions of the Court will necessarily raise diﬃcult political problems. Maintaining independence will not be easy: no doubt, the Prosecutor will be subjected to pressures from governments to direct or limit his investigations and prosecutions as they see ﬁt. The Prosecutor has decided to open the ﬁrst investigation of the ICC in the Democratic Republic of the Congo. He will have to determine if any individuals should be charged with crimes falling within the ICC’s jurisdiction. The atrocities committed in Ituri are not only committed by the Congolese: Uganda and Rwanda have intervened and armed rebel groups. According to Amnesty International, Congolese groups are ﬁnanced by Uganda. Both Presidents Museveni and Kagame have denied involvement.47 If the Prosecutor identiﬁes perpetrators from Uganda and/or Rwanda, their governments might protest. The investigation of the referral of Uganda against the Lord’s Resistance Army may extend to exactions committed by the government forces: will the Prosecutor be able to investigate ‘all sides’? The possible referral of the Central African Republic against the deposed President Patassé may involve the Court in internal politics and support for the author of a coup. The problems faced by the ICTY regarding allegations of NATO war crimes, and those of the ICTR concerning alleged crimes committed by the Tutsi forces illustrate the types of problems which may confront the ICC in the future. In a ‘Paper on some policy issues before the Oﬃce of the Prosecutor’ issued in September 2003,48 the Prosecutor has identiﬁed some of the problems he will face: Given the nature of the crimes within the jurisdiction of the Court, the Prosecutor may be called upon to act in a situation of violence over which the State authorities have no control. His Oﬃce can be present in the country concerned only at great risk. The protection of witnesses, gathering of evidence and arrest of suspects will be difﬁcult if not impossible. The Prosecutor may also be asked to act in a situation where

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those who have the monopoly of force in a State are the ones to commit the crimes. It goes without saying that in such a case the enforcement authorities in that State will not be at the Prosecutor’s disposal.

The Oﬃces of the Prosecutor and of the Registry will face formidable hurdles when they start ﬁeld investigations. As the Court has no enforcement powers, the cooperation of governments and the support of NGOs are essential conditions for the eﬀective implementation of its mandate. A US-based advocacy network, Citizens for Global Solutions, has made a number of useful concrete recommendations regarding ICC investigations in a recent report.49 Among its recommendations to the ICC: – carefully weigh the potential impact of judicial action on the peace process in the countries under investigation, especially if there is a signiﬁcant breakthrough in negotiations; – work locally, involve civil society; – investigate all sides fairly and transparently; – ensure that investigations yield visible results soon, and keep people in these countries informed of the Court’s progress; – ensure the safety and conﬁdentiality of all witnesses; – help all victims and witnesses obtain appropriate medical and psychological support. The international community needs to support and cooperate with the ICC investigations, ensuring the safety of the investigators and witnesses, in enforcing ICC arrest warrants, and in supporting domestic judicial reform and other justice and reconciliation mechanisms in these countries. The Court needs the support and cooperation of all its friends, governments, international organizations, NGOs and individuals. At the same time, the Court is exposed to the current hostility of a major foe, the USA, and the latent hostility of China and Russia. In spite of the many obstacles and challenges on its road, the Court will need to show that it can deliver eﬀective and even-handed justice and that it is a necessary and useful instrument of international criminal justice, as well as a welcome expansion of an expanding international justice system. The attitude and impact of ‘friends and foes of the Court’ are reviewed in Chapter 7. Notes  2

See AI News Service 38/98, AI INDEX: IOR 40/20/98, 7 July 998. On the origin of the Court, see Beigbeder (999), pp. 86-95. See Roy S. Lee (Ed.), UNITAR, The International Criminal Court, The Making of the Rome Statute: Issues, Negotiations, Results (Kluwer Law International, The Hague/ London/Boston/New York,999), – Vesselin Popovski, The International Criminal

The International Criminal Court

3 4 5 6 7 8

9 0 

2 3 4 5

6 7 8

9 20 2 22

Court: A Synthesis of Retributive and Restorative Justice’, International Relations, vol. XV, no. 3, December 2000, pp. -0 – Fact sheets of the International Justice Project on the ICC in . See Marlies Glasius, ‘How Activists Shaped the Court’, Crimes of War Project 9992003, , December 2003. Roy S. Lee, ‘Introduction, The Rome Conference and Its Contribution to International Law’ in Roy S. Lee, op.cit, p 5 – see also pp. 4, 24-25. Pam Spees, The International Criminal Court Monitor, The Newspaper of the NGO Coalition for an International Criminal Court, Issue 7, May 200, p. 4. See M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (Kluwer Law International (The Hague/London/Boston/New York, 999). Final Act, Resolution F and General Assembly res. 53/05 of 8 December 998 and res. 55/55. The Commission’s sessions were held on 6 and 22 February 999, 26 July to 3 August 999, 29 November to 7 December 999, 3 to 3 March 2000 following an intersessional meeting in Siracusa 3 January to 6 February 2000. See . See , 22 January 2002. Jennifer Schense, The International Criminal Court Monitor, May 200, pp. 3 and 5. See UN Doc. ICC-ASP//3 available at , and Daryl A. Mundis, ‘The Assembly of States Parties and the Institutional Framework of the International Criminal Court’, The American Journal of International Law, Vol. 97: No. , 2003, pp. 32-47. Res. ICC-ASP//Res., 9 September 2002. UN Doc. ICC-ASP//Res.2, 9 September 2002../ Res. ICC-ASP//Res.3, 9 September 2002. List A contains the names of candidates with the following qualiﬁcations: established competence in criminal law and procedure, and the necessary relevant experience, whether as a judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; – List B: established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court (Statute, Art. 36.3 (b) and 36.5). See Note . UN Press Release GA/0252, 3 September 2004, ‘General Assembly Concludes FiftyEighth Session’. For instance: Agreement Concerning the Headquarters of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 99, 27 May 994, UN Doc. S/994/848, annex (994. The ICC Agreement is a UN Doc., 2002. Statute, Art. 38.3 (a) and 42.2. Statute, Art. 4. and 2. Statute, Art. 2.2 (b) and (d). Financial Regulations and Rules, Rule 0., Regulation 3 and Rule 03.2.

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23 Res. ICC-ASP//Res.2 and ICC-ASP//Res. 4 of 3 September 2002. 24 Res. ICC-ASP//Res. of 3 September 2002.

25 Res. ICC-ASP//Res. 6 of 9 September 2002.

26 See , ICC Digest Number 986, 22 April 2004.

27 Elected judges are from Bolivia, Brazil, Canada, Costa Rica, Cyprus, Finland, France,

28 29 30 3 32 33 34 35 36 37 38 39 40 4 42 43 44 45 46 47 48

49

Germany,Ghana, Ireland, Italy, South Korea, Latvia, Mali, Samoa, South Africa, Trinidad and Tobago and the UK. See . Res. ICC-ASP/2/Res. , 5 September 2003. Res. ICC-ASP/2/Res.6, 2 September 2003. Res. ICC-ASP/2/Res.7, 9 September 2003. Doc. ICC-ASP/2/0, Report of the second session of the ASP, 8-2 September 2003. Res. ICC-ASP/2/Res. 8,  September 2003. Res. ICC-ASP/2/Res. 9 and 2, 2 September 2003. Res. ICC-ASP/Res. 2, 2 September 2003. See ICC Press Release No. ASP2004.008-EN, 0 September 2004, ‘States Parties to International Criminal Court End Session by Approving 2005 Budget’. NGO Coalition for the ICC, ‘International Criminal Court Prosecutor to “Follow Closely” Situation in the Democratic Republic of Congo’, 6 July 2003. See ICC ‘Address by Prosecutor Luis Moreno-Ocampo’, Third Session of the ASP, 6 september 2004. ICC Press Release, 29 January 2004. Human Rights Watch, ‘Investigate All Sides in Uganda, Chance for Impartial ICC Investgation into Serious Crimes a Welcome Step’, New York, 4 February 2004. See Note 30. Africa News, Press Release, 2 November 2003. Oﬃce of the Prosecutor, Press Release No. pids.otp.006.2004-EN, 9 April 2004. Oﬃce of the prosecutor, Press Release, 23 June 2004. FIDH Press Release, ‘War Crimes in the Central African Republic, FIDH formally brings its ﬁrst case before the International Criminal Court’, 3 February 2003. Edmonton Journal, 2 October 2003. Africa News, 2 October 2003. ‘Paper on some policy issues before the Oﬃce of the Prosecutor’, September 2003, a redrafted version of a paper discussed at the public hearing of the Oﬃce of the Prosecutor convened from 7 to 8 June 2003 at the The Hague. , June 2004, Executive Summary.

CHAPTER 7

FRIENDS AND FOES OF THE INTERNATIONAL CRIMINAL COURT

The Court has many friends and a powerful foe, the USA. The ultimate question is whether the Court with the support of those many friends will overcome the big handicap of US absenteism, which, in part, killed the League of Nations. Or, hopefully, whether the USA will eventually ﬁnd it in its interest to soften its hostile stance towards the Court or even to join the Court. In 2004, only two permanent members of the UN Security Council, France and the UK, had ratiﬁed the Rome Statute. The position of China and Russia had not been publicly announced. Friends of the Court Friends of the Court include friendly states, the United Nations, regional and other groups of states, parliamentary groups, and NGOs. The individual or collective action and inﬂuence of legal scholars in writings, conferences, international law associations and/or as members of government ministries or international organizations’ legal oﬃces, although diﬃcult to demonstrate, should not be underestimated. Friendly states

The Court is an intergovernmental institution created by an international treaty. Its ﬁrst friends should be found among the 39 states’ signatories of the Rome Statute, and even more, among its 97 States Parties. A group of even closer friends was the Like Minded Group (LMG) created to support the establishment of a strong, independent and eﬀective International Criminal Court. The LMG played a key role leading up to and during the Rome Conference and the Preparatory Commission sessions: according to the NGO Coalition for the ICC, the role and commitment of the LMG, under Australia’s and Canada’s leadership was ‘a historic contribution that made the Rome Statute possible’. Following the entry into force of the Statute in July 2002 and the establishment of the Court in The Hague, the LMG decided to take a fresh approach to support the ICC. In September 2003, under Germany’s leadership, governments supporting the Court launched the group of the ‘Friends of the ICC’ in New York. In No-

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vember, also under Germany’s leadership, a parallel group was created in The Hague to prepare embassies there for increased involvement in ICC issues. Both groups have committed to the same principles, namely: – Promoting the universal ratiﬁcation of the Rome Statute and fully safeguarding its integrity2 in all relevant fora, at all levels; – Promoting the universal ratiﬁcation of the Agreement on Privileges and Immunities; – Promoting States’ cooperation with the Court in all aspects of its practical work, including through the adoption of implementing [national] legislation; and – Promoting the role and standing of the ICC and raising awareness of its relevance for the purposes of the UN. The New York group focuses on UN-related ICC events, while the The Hague group is more involved in ICC issues. Membership to the groups is informal and open to all states that commit themselves to the groups’ principles. It is not limited to the States Parties to the Rome Statute. In 2004, the New York group included the 97 States Parties as well as Angola, Japan and Mexico. The Hague group has fewer members, due to the lower number of embassies in that city: it includes 44 States Parties and Japan. Canada has a particular place in the founding of the Court, which was recognized by the election of Philippe Kirsch as President of the Assembly of States Parties. Canada was the ﬁrst country to adopt legislation implementing the Rome Statute, and both the government and Canadian NGOs have been involved in workshops on the ICC in many countries. The Netherlands has special responsibilities as the host state for the Court. The Task Force of the Dutch Ministry of Foreign Aﬀairs is in charge of coordinating all the Dutch government’s activities in relation to the Court’s establishment in The Hague. It promotes worldwide ratiﬁcation and implementation of the Rome Statute.3 As already stated, The Netherlands is making premises available to the Court free of charge for ten years as from  July 2002. The leadership role of Germany has already been noted. The following statements were made during the 58th session of the UN General Assembly in 2002 by ‘friendly’ countries, explaining the need of small countries for international law and for an eﬀective ICC:4 – The Foreign Aﬀairs Minister of Trinidad and Tobago, the country which proposed in 989 the creation of an ICC specialized in drug-related oﬀences, said in October 2003 that his country was committed to the eﬃcient and eﬀective functioning of the ICC. He added that the ICC did not represent victor’s justice but a universal and shared symbol of morality based on the fundamental principle that those individuals who commit serious crimes within the jurisdiction of the Court will be brought to justice. – A delegate of Switzerland, a neutral country which joined the UN only in September 2002 and the host of the International Committee of the Red

Friends and Foes of the International Criminal Court

Cross, said that his country attaches high importance to respect for international law, which explains its commitment to international humanitarian law and to the ICC. ‘Without international law, many countries would feel at the mercy of the strongest. But the great powers, like the smaller ones, need a multilateral framework to resolve their diﬀerences’. – Liechtenstein’s Minister of Foreign Aﬀairs declared that ‘as any other State, in particular small States, Liechtenstein attaches the highest possible priority to the rule of international law, expressed inter alia in our commitment to the ICC, and international relations that are based on rules derived from international legal standards’. UN organizations and secretariat heads

The UN General Assembly has been supportive of the Court, against US objections, recorded as negative votes. On  December 2003, the Assembly adopted a resolution (A/RES/58/79) which noted that with the election of the judges and the Prosecutor and the appointment of the Registrar, the Court was fully constituted. Reiterating the historical signiﬁcance of the adoption of the Rome Statute, the Assembly called upon all states that are not yet parties to the Statute to consider ratifying it or acceding to it without delay, and called upon all states to consider becoming parties to the Agreement on the Privileges and Immunities of the Court without delay. It expressed its appreciation to the Secretary-General for providing eﬀective and eﬃcient assistance in the establishment of the Court. Indeed, Koﬁ Annan has been a strong and committed advocate for the Court and, with his blessing, the UN secretariat has generously provided eﬀective legal and administrative assistance to the Court. Annan praised the birth and development of the Court in several public statements. In 998, he saluted the adoption of the Rome Statute as ‘another giant step forward in the march towards universal human rights and the rule of law’. In April 2002, when 66 ratiﬁcations have assured the entry into force of the Statute, Annan said that ‘the long-held dream of a permanent international criminal court will now be realized. Impunity has been dealt a decisive blow ... A missing link in the international justice system is now in place ... ‘ In March 2003, Annan said that the UN looked forward to working with the ICC.5 In turn, in September 2003, the Assembly of States Parties has expressed its deep appreciation to the Secretary-General and the UN secretariat [f ]or their outstanding support in the establishment of the International Criminal Court, and also acknowledges with satisfaction the dedication and professionalism of the staﬀ of the Codiﬁcation Division of the Oﬃce of Legal Aﬀairs, which served in an exemplary manner as secretariat, and in particular of the Ad Hoc Committee and Preparatory Committee on the establishment of an International Criminal Court, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, the Preparatory Commission for the International

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Chapter 7 Criminal Court and the Assembly of States Parties to the Rome Statute of the International Criminal Court.6

In another resolution adopted on 9 March 2004 (A/RES/58/57) concerning the Rights of the Child, the General Assembly called upon all States to end impunity for perpetrators of crimes against children, and recognized the contribution of the establishment of the ICC, as a way to prevent violations of human rights and international humanitarian law, in particular when children are victims of serious crimes, including the crime of genocide, crimes against humanity and war crimes, to bring perpetrators of such crimes to justice and not to grant amnesties for these crimes. The resolution also recognized the inclusion in the Rome Statute, as a war crime, of crimes involving sexual violence and crimes of conscripting or enlisting children under the age of 5 years or using them to participate actively in hostilities in both international and non-international armed conﬂicts. The USA voted against this resolution. Besides Annan’s strong support, the heads of two UN agencies have vigorously and courageously endorsed the creation of the Court. Former UN High Commissioner for Refugees, Sadako Ogata (Japan), in an article published by The Washington Post on 4 May 997, deplored that in the decades since the Holocaust, ‘we have not been able to prevent or halt even the most brutal forms of violence against whole groups of people’. Providing protection against evil lies at the heart of refugee protection. She said: We need a strong United Nations human rights machinery to prevent but also expose violations of human rights. We also need an International Criminal Court. The potential Pol Pots of this world – yes, the planners and not just the perpetrators – must be deterred by the prospects of criminal justice. And is it fair and realistic to expect the survivors to forgive and to cooperate if there is no justice? In the absence of justice, private revenge may prevail.

Carol Bellamy (US), Executive Director of UNICEF, declared at the opening session of the Hague Appeal for Peace on 2 May 999: (...) UNICEF is ... insistent on the need to ﬁght atrocities against children including rape as a weapon of war, by deploying a permanent, fully empowered International Criminal Court. The purveyors of genocide and ethnic cleansing and other unspeakable crimes must be made to understand that as surely as the sun rises, they will be called to account – and that impunity will not stand.

In May 997, Bellamy had already called for the establishment of an international criminal court and a permanent prosecutor’s oﬃce so that atrocities committed against children in conﬂict cannot go unpunished. She said: We have to recognize that these incidents [in Algeria, Zaire, Rwanda, Uganda, Bosnia and Herzegovina, in Central America] represent a deliberate targeting of children as

Friends and Foes of the International Criminal Court part of an orchestrated campaign to terrorize and subjugate entire communities (...). UNICEF believes that those responsible cannot and must not be allowed to act with impunity. A permanent international criminal court, and a permanent prosecutor’s oﬃce would mean that, for the ﬁrst time, the world will have the capacity to bring to justice those responsible for the torture, the rape and the murder of children.7

In March 2003, Sergio de Mello, the former UN High Commissioner for Human Rights, who was killed in Iraq in August 2003, hailed the inauguration of the Court as a ‘historic milestone’. He said that the importance of the Court in the ﬁght against impunity and in preventing gross human rights violations cannot be overemphasized: ‘It represents a signiﬁcant development of the principle of universal jurisdiction for serious international crimes. With the creation of the Court, there will no longer be any place for oﬀenders to hide. And potential violators will now have to think twice before committing abuses’.8 In November 2003, the UN Under-Secretary-General Jacques Klein (a US citizen) warned belligerent parties in Liberia that ‘all those who continue to commit atrocities as deﬁned under the ICC Statute, will accordingly be liable to face future prosecutions.9 The UN Security Council, in view of the US opposition and its potential veto, has not given open support to the ICC. However, in a meeting of the Council at Ministerial level on 24 September 2003 on ‘Justice and the Rule of Law: The UN Role’, many delegates called the ICC a major step forward in strengthening the rule of law in international relations. German Ambassador Gunter Pleuger said that because of the ‘cross-references’ between the mandates of the Council and the Court, the Council should establish a monitoring group to better observe the workings of the Court. France and the UK expressed strong support for the Court. China made no reference to the Court in its statement. Russia said that punishment of those accused of crimes against humanity should be done through special tribunals or the ICC. The US delegate recalled that his country had been the single largest donor to ad hoc international tribunals and reaﬃrmed the US commitment to the rule of law, but without any reference to the ICC. The ﬁnal statement on the meeting presented by the UK delegate referred to international criminal justice but not to the International Criminal Court.0 European Union

The Union is a strong supporter of the ICC, the political and ﬁnancial mainstay and guarantee of the ICC’s legitimacy and sustainability. On  June 200, the EU Council adopted a common position on the ICC stating that: The establishment of the International Criminal Court, for the purpose of preventing and curbing the commission of the serious crimes falling within its jurisdiction, is an essential means of promoting respect for international humanitarian law and human rights, thus contributing to freedom, security, justice and the rule of law as well

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as contributing to the preservation of peace and the strengthening of international security (...)

On 3 June 2003, the EU Council aﬃrmed that the principles of the Rome Statute are fully in line with the principles and objectives of the Union and that the serious crimes within the jurisdiction of the Court are of concern to all Member States, which are determined to cooperate for the prevention of those crimes, and for putting an end to the impunity of their perpetrators. The Union is convinced that universal accession of the Rome Statute is essential for the full effectiveness of the Court. It considers as ‘eminently important’ that the integrity of the Rome Statute be preserved. It noted that all Member States of the Union had ratiﬁed the Rome Statute. It updated the 200 Common Position and set out Common Guidelines. The objective of the Common Position is to support the eﬀective functioning of the Court and to advance universal support for it by promoting the widest possible participation in the Rome Statute. More concretely, the Union and its Member States will support the development of training and assistance for judges, prosecutors, oﬃcials and counsel to the Court. Nine of the ten countries which joined the Union in June 2004 have also ratiﬁed the Rome Statute.2 Bulgaria and Romania, countries still on the waiting list for EU membership, have ratiﬁed the Rome Statute. Chris Patten, the Union’s External Relations Commissioner, has repeatedly expressed support for the Court. In October 2003, he said that the EU stood ready to help the Court, which ‘represents an enormously important advance for the cause of international justice’.3 Parliamentarian groups and other regional organizations

In September 2003, Parliamentarians for Global Action (PGA) organized the 2nd Consultative Assembly of Parliamentarians for the ICC & the Rule of Law at UN headquarters in New York. This Assembly is the only global gathering of legislators entirely devoted to the ICC. During the meeting, 40 MPs from 68 countries committed themselves to raise awareness and understanding amongst political leadership in national and regional parliaments on the ICC – to intensify eﬀorts of the global ratiﬁcation campaign – to promote the eﬀective implementation of the Rome Statute through comprehensive national legislation – and protection of the integrity of the ICC.4 In October 2003, the 09th Assembly of the Inter-Parliamentary Union (IPU) invited, in part, all states to consider, if they have not yet done so, acceding or ratifying international instruments, in particular the Rome Statute.5 At the regional level, the European Parliament’s Friends of the ICC group was ﬁrst created after the adoption of the Rome Statute and has had a positive impact throughout the ratiﬁcation campaign, under the leadership of former Member of the European Parliament (MEP) Gijs de Vries (Netherlands). At their meeting on 9 December 2003, the group reaﬃrmed its commitment to end-

Friends and Foes of the International Criminal Court

ing impunity for serious human rights violations. Its members are calling for worldwide accession, ratiﬁcation and implementation of the Rome Statute. They encourage EU member states to take a leadership role in promoting a coherent and eﬀective ICC policy and to ensure consistency with the EU Council Common Position on the ICC in regional and international fora, including the UN Security Council.6 In a resolution adopted on 25 June 2003,7 the Parliamentary Assembly of the Council of Europe welcomed the entry into operation of the Court following the elections of its judges, President and Prosecutor, but expressed its concern that certain members of the Council had still not acceded to the Rome Statute and that the US had announced that it would not ratify it. It renewed its appeal to members and observer states to accede to and ratify the Statute and, for those which had not yet done so, to adopt the necessary national implementing legislation at the earliest opportunity. In August 2003, Peter Schieder, the Assembly’s President, welcomed a Security Council resolution on the protection of humanitarian and peacekeeping personnel. He said: ‘The most pressing concern now is to make sure that the perpetrators of such attacks will no longer go unpunished. This was exactly the purpose for which the ICC was set up. The full and unconditional support of all international key actors would strengthen the ICC’s role of deterrent and thus contribute to the preservation of stability and peace in the world’.8 Latin American and Caribbean states have expressed strong support for the Court. The Bavaro Declaration adopted at the 2th Summit of Ibero-American Heads of State and Government held on 5-6 November 2002 declared, in part, satisfaction for the entry into force of the Rome Statute and emphasized the importance of its universal ratiﬁcation and accession.9 One year later, the same leaders adopted the Declaration of Santa Cruz de la Sierra which, inter alia, emphasized the importance of the establishment of the Court, the election of distinguished iberoamerican jurists to integrate the Court and the importance of the accession and universal ratiﬁcation of the Rome Statute.20 In December 2002, the Presidents of Mercosur expressed the same satisfaction on the establishment of the Court in a joint statement.2 In May 2003, ministers attending the Sixth Meeting of the Council for Foreign and Community Relations, 8-9 May 2003 in Kingston, St. Vincent and the Grenadines, welcomed the inauguration of the ICC in March 2003 and re-afﬁrmed the Region’s commitment to the preservation of the Court’s integrity and eﬀective functioning. They recalled the role played by the Caribbean Community (CARICOM), spearheaded by Trinidad and Tobago, in promoting the establishment of the Court.22 In October 2003, the Inter-american Commission of Human Rights (a principal organ of the Organization of American States) urged, in part, states that have not yet done so, to ratify the various regional and international instruments on the subject, such as the Statute of the International Criminal Court.23

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The General Assembly of the OAS approved a resolution on 8 June 200424 welcoming the historic entry into force of the Rome Statute on  July 2002 and urging all states to ratify or accede to the Rome Statute, enact implementing legislation, and to cooperate among themselves to bring an end to impunity for the crimes that fall under the ICC’s jurisdiction. The US attached a Statement to the Resolution explaining why they oppose the ‘seriously ﬂawed’ ICC: ‘In light of this position, the United States cannot in good faith join in the consensus on an OAS resolution that promotes the Court’. The International Committee of the Red Cross

While the Geneva Conventions of the Red Cross require that sanctions be applied by national authorities to those who violate their obligations, the International Committee of the Red Cross (ICRC) has itself recognized that the existing system for the repression of war crimes (relying only on national justice) is still too often ignored. In a document of February 998, the ICRC wrote that it was imperative to put an end to the cycle of impunity: establishing an eﬀective international criminal court would contribute to reaching this goal.25 It set three conditions for an independent and eﬀective court: – an ICC which has jurisdiction over all war crimes: – all serious violations of international humanitarian law committed in international and internal conﬂicts; – whether they are committed as single acts, as part of a plan or policy, or on a large scale. – an ICC should have inherent jurisdiction over the three core crimes of genocide, crimes against humanity and war crimes. As soon as a State becomes party to the Statute of the ICC and when national trial procedures are not available or are ineﬀective, the Court should have automatic jurisdiction over these crimes. – an independent and impartial ICC, empowered to initiate investigations and initiate proceedings ex oﬃcio. The Prosecutor should not have to wait for a referral of a situation by the Security Council or a state complaint. To these ends, the ICRC has consistently and actively supported the establishment of a fair and eﬀective International Criminal Court and welcomed the adoption of its Statute in 998. The ICRC took an active part in the negotiations leading to the Rome Statute by contributing its expertise, successfully promoting the conditions it had set for the Court and helping to draft the Statute’s deﬁnitions of war crimes and Rules of Procedure and Evidence. From an ICRC perspective, the Geneva Conventions and their two Additional Protocols were prime sources of inspiration for the Statute. For the ICRC, the ICC was the latest and most important development in the ﬁeld of international law. By making individuals criminally responsible for their actions, it should prove to be a powerful deterrent. The ICRC linked the ICC to the Geneva Conventions: ‘From now

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on there will be a permanent and independent institution to enforce respect for the Geneva Conventions’.26 The Committee also welcomed the entry into force of the Statute in 2002 and the adoption by States Parties of the Elements of Crimes and the Rules of Procedure and Evidence. The ICRC representative at the Sixth Committee of the UN General Assembly, on 4 October 2002 warmly thanked States for having recognized, in Rule 73 which grants the ICRC immunity from providing evidence to the Court, the speciﬁc mandate of the ICRC. For the ICRC, the plight of war victims demands both humanitarian action and enforcement of the rules of international humanitarian law. The ICRC explicitly supports the ICC as part of its eﬀorts to promote respect for international humanitarian law by urging states to adhere to the relevant treaties and enforce them at the national level. For instance, in a seminar in Bangkok held in September 2003, while commending Thailand on joining international agreements on limiting the use of chemical weapons and banning landmines, ICRC member Daniel Thurer urged Thailand to ratify the Rome Statute.27 Other non-governmental organizations

The NGO Coalition for an ICC, created in 995, has had a determining inﬂuence over governments in obtaining a successful outcome to the Rome Conference. In 996, the Coalition had 78 participating organizations, including law associations (comprising the International Commission of Jurists and the International Bar Association), human rights groups (among them, Amnesty International, Fédération internationale des Ligues des droits de l'homme, Human Rights Watch), parliamentarian associations, the World Federalist Movement, Church or religious groups (Coordinating Board of Jewish Organizations, Evangelical Lutheran Church in America, the Quakers and Mennonites), universities and institutes concerned with international humanitarian and criminal law, from the USA, Canada, Denmark, India, Italy, the Netherlands, France. The key goal of the Coalition was to foster awareness and support for the Court among a wide range of civil society organizations, including those focusing on human rights, international law, humanitarian issues, peace, the rights of women and children, religion and other issues. The Coalition served as both a facilitator for civil society involvement in the negotiating process as well as the world’s principal source of information on the ICC. By the beginning of the Rome Conference, the Coalition had grown into a movement involving more than 800 organizations. Of the 236 NGOs accredited to the Conference, most were members of the Coalition. These organizations were represented by an estimated 450 individuals. Many governments, the UN Secretary-General, other UN oﬃcials and media experts have commented on the decisive role of NGOs at the Conference. During the Rome negotiations, the NGOs produced documentation, briefed friendly state delegates, assisted small delegations of poor countries, kept ‘virtual vote’ tallies on crucial issues. They then sent this information to thousands of

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national activists by e-mail, and posted it on their website, thus forcing a degree of transparency in the negotiations. A number of countries relied on a technical assistance programme by the NGO ‘No Peace Without Justice’ to increase the size and expertise of their delegationss.28 The Coalition had a direct inﬂuence on such issues as the independence of the Prosecutor, the provision of witnesses in the proceedings of the Court, ﬁnancing of the Court, among others. Following the successful completion of the Rome Conference, the NGO Coalition for an ICC changed its name to ‘The NGO Coalition for the ICC’ and expanded its work with the main objective of promoting the universal acceptance and ratiﬁcation of the Rome Statute, including the adoption of comprehensive national implementing legislation. The role of the Coalition is to represent, facilitate and coordinate the work of its worldwide membership, while serving as the primary information resource on the ICC, and as a liaison between governments, ICC oﬃcials, international organizations, academics and civil society members. More than 95 per cent of all NGOs involved in the ICC campaign carry out their work under the umbrella of the NGO Coalition. In May 2002, the Coalition opened its oﬃce in The Hague. This oﬃce plays an important role in allowing the Coalition and its member organizations to work eﬀectively with the Court and with the Host State. In 2004, the Coalition had over 2 000 NGO members in over 50 countries, and supports their eﬀorts through regional coordinators and liaisons based all over the world.29 The Assembly of States Parties (ASP), during its second session in September 2003, recognized the coordinating and facilitating role of the Coalition.30 It acknowledged the important contribution of all participating NGOs, including the Coalition, to the establishment of the Court throughout the meetings of the Preparatory Committee, the Rome Conference, the Preparatory Commission and the ﬁrst session of the ASP. It also noted with appreciation the coordinating and facilitating role that the NGOs would perform between the community of NGOs and the Assembly, and between that community and the Court, by encouraging and facilitating the participation of NGOs from all regions, particularly from developing countries, including the dissemination of information and documentation, organizing meetings, conveying expertise of NGOs to governments and by promoting worldwide awareness of and support for the Rome Statute and the Court. The USA, Russia and China The declared ‘enemy’ of the Court is the USA, which is the only country ﬁghting openly against the Court and trying to erode its ‘integrity’ by the forced imposition over many countries of an exemption for US nationals from the jurisdiction of the Court. The position of two other permanent members of the UN Security Council, China which voted against the Rome Statute and Russia, which has signed but has not ratiﬁed the Statute is uncertain: however, they have not publicly engaged in an international campaign against the Court.

Friends and Foes of the International Criminal Court

The American crusade against the Court

The US delegates took part in the Rome negotiations and fought to insert safeguards in the Statute, most of them were accepted. However, on 7 July 998, while 20 countries voted for its adoption, the US voted against it, together with China, Israel, Libya, Iraq, Qatar and Yemen. President Clinton’s announcement on 3 December 2000, the deadline established by the Rome Treaty, that the USA was signing the Treaty was unexpected in view of continuous US opposition to the Court’s Statute. However, he said that ‘we are not abandoning our concerns about signiﬁcant ﬂaws in the Treaty’. In particular, the US considers that the Court’s jurisdiction over US personnel should come only with the US ratiﬁcation of the Treaty. He did not recommend that his successor submit the Treaty to the Senate for advice and consent ‘until our fundamental concerns are satisﬁed’. Although Clinton’s decision looked like a coup against the incoming Republican Administration, he justiﬁed it by allowing US negotiators to promote US interests in productive discussions with other governments. While Clinton’s move won praise in press comments in Europe and Australia, the then Chairman of the US Senate Foreign Relations Committee, Senator Jesse Helms declared on 3 January 200 that Clinton’s decision in his ﬁnal days in oﬃce is ‘as outrageous as it is inexplicable’. He recalled the statement made two years before to Congress by the US chief negotiator, David Scheﬀer: The [Rome] treaty purports to establish an arrangement whereby United States armed forces operating overseas could be conceivably prosecuted by the International Criminal Court even if the United States has not agreed to be bound by the Treaty. Not only is this contrary to the most fundamental principles of treaty law, it could inhibit the ability of the United States to use its military to meet alliance obligations and participate in multinational operations.

As nothing had changed since then, Helms would make reversing this decision, and ‘protecting America’s ﬁghting men and women from the jurisdiction of this international kangaroo court’ one of his highest priorities.3 US actions were not limited to condemning the Court: US diplomats and legislators adopted an aggressive stance in a worldwide campaign of threats intended not just to ‘protect’ its military personnel, but to destroy the Court, or at least, to limit its integrity and capacity. In May 200, the US Senate Armed Services Committee Chairman John Warner and Helms introduced the ‘American Service Members’ Protection Act’ (ASPA), which was adopted in 2002. Among its key provisions:32 – No governmental entity in the US, including State and local governments or any court, may cooperate with the ICC in matters such as arrest and extradition of suspects, execution of searches and seizures, taking of evidence, and similar matters;

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– No agent of the ICC may conduct in the US any investigative activity; – The President should use the US voice and vote at the Security Council to ensure that each resolution authorizing any UN peacekeeping operation permanently exempts members of the US armed forces from prosecution by the ICC; – No country that has ratiﬁed the treaty establishing the Court can receive US military assistance (Exemption from NATO member countries and ‘major non-NATO allies’, cited in the bill as Australia, Egypt, Israel, Japan, the Republic of Korea, New Zealand, and Taiwan); – The President is authorized to use all means necessary and appropriate to bring about the release from captivity of US and Allied personnel detained or imprisoned against their will by or on behalf of the Court. In other words, the American President was authorized to ‘invade the Hague’ ... On 6 May 2002, Pierre-Richard Prosper, US ambassador-at-large for war crimes issues, announced at a Washington, DC press conference that the US was withdrawing from the Statute, thus ‘unsigning’ Clinton’s signature. The Bush administration then started implementing the provisions of ASPA at both bilateral and UN levels, using blunt threats and pressures. In July 2002, US diplomatic missions around the world were instructed to begin approaching foreign governments to negotiate bilateral immunity agreements. Also in July, the US obtained the vote of the Security Council on a resolution requesting the ICC to refrain from initiating investigations or proceedings related to peacekeepers of non-state Parties to the Rome Statute. In both cases, the US met strong opposition and aroused hostility from many countries, including US allies, and condemnations from human rights NGOs. Bilateral agreements

These agreements assert that parties to the Rome Statute may conclude such agreements pursuant to Article 98(2) of the Statute,33 which provides: The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can ﬁrst obtain the cooperation of the sending State for the giving of consent for the surrender.

As an example, the agreement with East Timor includes the following points:34 – The USA has expressed its intention to investigate and to prosecute where appropriate acts within the jurisdiction of the ICC alleged to have been committed by its oﬃcials, employees, military personnel or other nationals; – The Agreement applies to ‘persons’ of both Parties deﬁned as current or former government oﬃcials, employees (including contractors), or military personnel or nationals;

Friends and Foes of the International Criminal Court

– Persons of one Party present in the territory of the other shall not, absent the expressed consent of the ﬁrst Party: – Be surrendered or transferred by any means to the ICC for any purpose, or – Be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to the ICC. Opposition to the Bilateral Agreements

European intergovernmental organizations have raised strong objections to the conclusion of such agreements between their member states and the US. On 30 September 2002, the Council of the European Union deﬁned a set of principles to serve as guidelines for EU member states when considering the necessity and scope of possible agreements or arrangements in responding to the US proposal. One principle said clearly that entering into US agreements – as presented drafted – would be inconsistent with ICC’s States Parties’ obligations with the regard to the ICC Statute and may be inconsistent with other international agreements to which these states are Parties. No impunity: agreements should include provisions ensuring that persons who have committed crimes falling within the jurisdiction of the Court do not enjoy impunity. Such provisions should ensure appropriate investigation and – where there is suﬃcient evidence – prosecution by national jurisdictions concerning persons requested by the ICC. Agreements should only cover persons not nationals of an ICC State Party, i.e. US nationals only. They may cover persons who enjoy state or diplomatic immunity, and persons who have been sent by the US to the foreign state (for example US military personnel), but not other US nationals. Agreement should have a termination or revision clause limiting the period in which the arrangement is in force. The US has publicly protested against the EU position. In a declaration on 7 September 2003 in New York, Lincoln Bloomﬁeld, assistant Secretary of State for political-military aﬀairs, complained that the EU had broken a promise to Secretary of State Colin L. Powell not to block US eﬀorts to obtain exemptions.35 In September 2002, the Parliamentary Assembly of the Council of Europe expressed its great concern about the eﬀorts of ‘some States’ to undermine the integrity of the ICC Treaty and especially to conclude bilateral agreements aiming at exempting their oﬃcials, military personnel and nationals from the jurisdiction of the Court.36 The Assembly was more speciﬁc and forceful in June 2003.37 It regretted the ongoing campaign by the US to convince State Parties to the Rome Statute, including member states of the Council of Europe, to enter into bilateral agreements aimed at subjecting these states’ cooperation with the ICC, as regards

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US citizens accused of crimes giving rise to the jurisdiction of the ICC, to prior agreement by the US government.

9. The Assembly considers such agreements to be violations of the Rome Statute of the ICC ..., and of the Vienna Convention on the Law of Treaties (Article 8), according to which states must refrain from any action which would not be consistent with the object and purpose of a treaty. 0. The Assembly condemns the pressures exercised on a number of member states of the Council of Europe to enter in such agreements and regrets that the contradictory demands made on them by the United States on the one side and the European Union and the Council of Europe on the other confronts them with a false choice between European and transatlantic solidarity. The Assembly considers that all countries should be left free to decide on their stance towards the International Criminal Court on considerations of principle alone. The Assembly considers that it is possible for bilateral exemption agreements to be construed narrowly, such as to subject the refusal to cooperate with the ICC to strict conditions, in particular the credible assurance of national prosecution of persons suspected of ICC crimes by the United States themselves and to ensure that the scope of persons aﬀected by the agreement is consistent with the text of Article 98 (2) of the ICC Treaty.

Another Parliamentary Assembly, the ACP (African, Caribbean and Paciﬁc countries associated with the European Union) Joint Parliamentary Assembly, meeting in Rome from  to 5 October 2003 aﬃrmed the unacceptability of the bilateral agreements while establishing the principle that developing countries suﬀering negative measures (i.e. US ﬁnancial sanctions) should receive the support and assistance of the EU and other developed countries that are Parties to the ICC Statute.38 During the debates, the Swedish member of parliament stated that such compensation should not be designed to substitute military assistance programmes, but should be an extension of cooperation programmes in the development area. The resolution was forwarded to the ACP-EU Council, the European Commission, the Secretaries-General of the UN, the African Union and ECOWAS and the governments of Cote d’Ivoire, Guinea, Guinea-Bissau, Liberia, Sierra Leone and Togo. The NGO Coalition for the ICC is ﬁrmly opposed to the bilateral agreements. It urges States Parties to the ICC to stand ﬁrm and honour their obligations under the Rome Statute. In a letter of 30 June 2003 to Colin L. Powell, Kenneth Roth, Executive Director of Human Rights Watch conveyed his strong dismay over recent US government actions towards the ICC.39 He wrote: US oﬃcials are engaged in a worldwide campaign pressing small, vulnerable and often fragile democratic governments to sign bilateral agreement with Washington. As you know, these agreements would exempt 270 million Americans and foreign nationals working under contract to the US government from the authority of the Court. Whatever the administration thinks of the International Criminal Court, its tactics in pursuing these bilateral agreements are unconscionable. Other governments can

Friends and Foes of the International Criminal Court plainly see that punitive measures are being used primarily against poor and relatively weak states with few options other than to give in to the US. Signing an agreement will put an ICC state partly in breach of its legal obligations ...

Human Rights Watch urges States Parties to reject Washington’s ‘unlawful contracts’. In addition to amending the ICC Treaty, the agreements would create a two-tiered system of justice, one for US nationals, and the other for the citizens of the rest of the world. As of mid-2004, of the 94 ICC States Parties, 34 had signed bilateral agreements. Only 4 countries, ICC States Parties or not, had yet ratiﬁed these agreements. 45 countries had publicly refused an agreement.40 The Security Council resolutions

In a second oﬀensive, this time within the UN, the US attempted to obtain exemption of peacekeepers from states not party to the Rome Statute – i.e. US peacekeepers – from the jurisdiction of the ICC with respect to acts or omissions related to UN operations. To achieve this, the US administration invoked Article 6 of the Statute. This article, on Deferral of investigation or prosecution, reads: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 2 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that eﬀect; that request may be renewed by the Council under the same conditions.

Article 6 was clearly not applicable to the US request of exemption: the article deals only with speciﬁc cases of crimes committed, or appearing to have been committed in ‘situations’ where peace and security is threatened, where the Security Council is allowed to intervene under the Rome Statute. It cannot apply as a general exemption to potential, future crimes to be committed by peacekeepers of non-State Parties. The US ﬁrst proposed that the Secretary-General, without further request from the Council, should once a year inform the President of the ICC that UN peacekeepers would be generally exempt from the Court’s jurisdiction for 2 months. Following a few days of tense negotiations, during which the US insisted and threatened to veto the renewal of a UN mission to Bosnia-Herzegovina (UNMIBH), and, for good measure, to veto the renewal of all UN peacekeeping operations, the Security Council members agreed to the text of resolution 422. On 2 July 2002, the resolution was approved unanimously under Chapter VII of the UN Charter. It requested, [c]onsistent with the provisions of Article 6 of the Rome Statute, that the ICC, if a case arises involving current or former oﬃcials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 

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Chapter 7 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise.

The Council expressed its intention to renew this request ‘under the same conditions each  July for further 2-month periods for as long as necessary’. Germany publicly opposed adoption of resolution 422: Chapter VII of the United Nations Charter requires the existence of a threat to the peace, a breach of peace or an act of aggression – none of which, in our view, is present in this case. The Security Council would risk of undermining its own authority and credibility [by adopting the draft Resolution].4

Syria, on behalf of Arab countries, also opposed the resolution, expressing full conﬁdence in international criminal justice.42 Canada strongly opposed the Resolution. Canada said that Resolution 422 set a ‘negative precedent’ under which the Security Council could change the negotiated terms of any treaty it wished., and that the Resolution would ‘dramatically alter and undermine’ the Rome Statute.43 In the Sixth Committee, the US said in October 2002 that ‘[w]hile sovereigns have the right to try non-citizens who have committed oﬀenses against their citizens or on their territory, the United States has never recognized the rights of an international organization to do so absent consent or a UN Security Council mandate and Security Council oversight’.44 One year later, on 2 June 2003, the US obtained the adoption of a second resolution (487 (2003)) by 2 votes to 0, as France, Germany and Syria abstained. The vote gave immunity to US nationals serving as peacekeepers or civilian police oﬃcers in six UN missions from Kosovo to East Timor. US Ambassador James Cunningham said that the resolution was ‘consistent with the fundamental principle of international law’, ‘the need for a state to consent before it is to be bound’ by a treaty. It was a primary concern of the US that Americans may ﬁnd themselves subject to ICC jurisdiction even though the US is not a Party to the Rome Statute. The US ‘has a fundamental objection to the ICC. In our view it is a fatally ﬂawed institution’.45 The US representative added a non-legal argument of political expediency reﬂecting only US concerns: The provisions of this resolution are as relevant and necessary today as resolution 422 (2002) was a year ago. We all know that United Nations operations are important if the Council is to discharge its primary responsibility for maintaining or restoring international peace and security. We also all know that it is not always easy to recruit contributors, and that it often takes courage on the part of political leaders to join military operations established or authorized by the Council. It is important that Member States not add concern about ICC jurisdiction to the diﬃculty of participating.

Friends and Foes of the International Criminal Court This resolution represents a compromise that respects the strongly held views of those who support the ICC and the equally strongly held views of those who do not. Such respect is important to maintain. This compromise, therefore, is important to maintain.46

Of the 9 speeches that preceded the vote – delegates from Argentina, Canada, Iran, Jordan, Nigeria, and The Netherlands, among others – all but two opposed the extension. There was no negative vote to the resolution. On the day of the voting, Koﬁ Annan expressed reservations.47 He believed that Article 6 of the Rome Statute was not intended to cover such a sweeping request, but only a speciﬁc request relating to a particular situation. He also believed that the request was not necessary. In his experience, no peacekeeper or any other mission personnel had been anywhere near committing the kind of crimes that fall under the jurisdiction of the ICC. The request therefore dealt with a highly improbable case. Secondly (and more importantly in our view), people serving in UN peacekeeping missions remain under the jurisdiction of their home states. Whenever one of them is accused of committing a crime during a mission, that person is immediately repatriated and is dealt with by the national courts of his/her country. Thirdly, under article 7 of the Rome Statute, no case is admissible in the ICC if it already has been or is being investigated or prosecuted by a State which has jurisdiction over it, unless that state is unwilling or unable genuinely to investigate or to prosecute. Annan hoped that the 2003 renewal would not become an annual routine. If it did, he feared that the world would interpret it as meaning that the Council wished to claim absolute and permanent immunity for people serving in the operations it establishes or authorizes. If this were to happen, it would undermine not only the authority of the ICC but also the authority of the Council and the legitimacy of UN peacekeeping. On 25 June 2003, the Parliamentary Assembly of the Council of Europe, in resolution 336 (2003), considered that Resolution 422 and its renewal constitutes a legally questionable and politically damaging interference with the functioning of the ICC. Resolution 422 is ultra vires in that the legal basis for a Security Council resolution under Chapter VII of the UN Charter – a present threat to international peace and security – was not present. Secondly, the resolution violates two articles of the ICC Statute: article 6 does not cover blanket immunity in relation to unknown, future situations. Article 27 expressly prohibits making distinctions on the basis of oﬃcial capacity in order to ensure that no person is above the law. The Assembly considered that this should also apply to UN peacekeepers, independently from their nationality. The US maintained pressure on the Security Council on the same issues. On  August 2003, the US imposed its conditions for the adoption of resolution 497, authorizing member states to establish a multinational force in Liberia. The Council adopted the resolution under Chapter VII of the UN Charter by 2 votes to 0, with France, Germany and Mexico abstaining. However, it made no

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reference to article 6 of the Rome Statute. It gave exclusive jurisdiction of contributing states not a party to the Rome Statute for all alleged acts or omissions arising out of or related to the Multinational Force or UN stabilization force in Liberia, unless such exclusive jurisdiction has been expressly waived by that contributing state. In a statement to the press immediately following the vote, Koﬁ Annan said: ‘Frankly my sentiments are with those countries that abstained’. William Pace, convenor of the NGO Coalition for the ICC said: ‘While we welcome the UN authorization of desperately needed humanitarian intervention in Liberia, we are deeply concerned by the US-initiated provision granting exclusive jurisdiction and permanent ICC exemption for its personnel deployed in Liberia’. Yvonne Terlingen, Amnesty International representative at the UN, said that this language would eﬀectively shelter genocide, crimes against humanity and war crimes with impunity.48 On 9 May 2004, the US tabled for renewal resolutions 422 and 487, again seeking to exempt US peacekeepers from ICC jurisdiction, and requesting a vote within 48 hours. China found this demand hasty, asked for a delay and half-threatened to veto it. The US move was immediately opposed by the Parliamentarians for Global Action. They urged governments to oppose the renewal of those resolutions. Senator Alain Destexhe of Belgium said: ‘Considering that peacekeepers and UN-mandated forces must behave in an exemplary way, it is clear that renewing a resolution that intends to give cover to those responsible for international crimes is politically insensitive and counterproductive’.49 Koﬁ Annan took a strong position against the renewal of the resolution. He circulated a memorandum to the Security Council ambassadors at their monthly lunch on 0 June 2004 ‘that raised serious doubts about the legality of an exemption and warning against dividing the Security Council’. Renewing US peacekeepers’ immunity from international prosecution for war crimes would undermine international law and send ‘a very unfortunate signal’ to the world. He told reporters: I think in this circumstance [in light of the prisoner abuse by US forces in Iraq] it would be unwise to press for an exemption, and it would be even more unwise on the part of the Security Council to grant it. It would discredit the Council and the United Nations that stands for the primacy of the rule of law.50 In an article published on 2 June 2004 in Swedish in Svenska Dagbladet, Hans Corell, UN former Legal Counsel from March 994 to March 2004, wrote that, in his view, the ﬁrst two resolutions dealt with a non-issue. It was inconceivable that the ICC judges would recognize the validity of such a resolution. What they would require to stop proceedings in the unlikely event that a peacekeeper is brought before the ICC is a new resolution of the Security Council under Article 6 addressing the particular case. Corell asked why, in order to achieve this meaningless resolution, the US uses threats and exerts tremendous pressure on the other members of the Council. ‘Why embarrass them that way? ... And what does it do to the credibility of the Council, an institution that the US often relies on when it comes to real issues such as peace and security, the ﬁght against terrorism, etc.’ Corell also felt that insisting on a non-issue resolution aﬀected the US administration’s credibility.

Friends and Foes of the International Criminal Court

The draft resolution met with mounting opposition. Seven members of the Security Council were expected to abstain: Benin, Brazil, China, France, Germany, Romania and Spain. 42 member states had formally requested an open debate at the Council on the renewal proposal. Revelations of the abuse of prisoners by the US military in the Abou Ghraib prison (see Chapter ) caused several governments to question the validity of the draft resolution. It made China decide to abstain. The Chinese ambassador to the UN said: ‘the Chinese government, particularly under pressure, could not give a white cheque to the Americans on the behaviour of their forces’. The US ﬁrst proposed a compromise text of the resolution, signaling that this would be the ﬁnal renewal of the resolution. Finally, knowing that the compromise text would not garner the nine votes necessary for its adoption, the US announced on 23 June 2004 that it would not pursue any further action on the resolution.5 This was the ﬁrst defeat for the US in their global ﬁght against the ICC. However, US policy is not likely to change: the US administration will still seek to exempt US nationals from ICC jurisdiction through bilateral agreements, and, if possible, through UN resolutions. US objections to the ICC – and rebuttal

For some American writers, ‘Court Dismissed: The ICC is a snare and a monstrosity – with no standing’, the Rome Treaty is ‘hopelessly ﬂawed, an open invitation to abuse by ambitious and/or biased prosecutors and judges’.52 According to another US analyst, ‘the Court threatens to diminish America’s sovereignty, produce arbitrary and highly politicized “justice”, and grow into a jurisdictional leviathan ... It appears that many of the legal safeguards American citizens enjoy under the US Constitution would be suspended if they were brought before the Court. Endangered constitutional protections include the prohibition against double jeopardy, the right to trial by an impartial jury, and the right of the accused to confront the witnesses against him ... If [the US] Congress goes ahead with the treaty, it could open Pandora’s box of legal mischief and political folly’.53 In a somewhat paranoic approach, some have suggested that the creation of the ICC was not just about justice, but equally about international politics and altering the balance of power. Small and medium-power states are thus alleged to seek the development of international institutions that will proactively balance the economic , military and diplomatic power of the US: the ICC is their latest creation.54 In July 2002, White House Press Secretary Ari Fleischer said that President George W. Bush ‘thinks that the ICC is fundamentally ﬂawed because it puts American servicemen and women at fundamental risk of being tried by an entity that is beyond America’s reach, beyond America’s laws, and can subject American civilian and military to arbitrary standards of justice’.55 The main objections presented by US oﬃcials,56 as well as responses to the US arguments57 are discussed hereunder. Although presented under four counts, the issues are interrelated.

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First objection: The ICC has potential jurisdiction over US citizens even though the US is not a Party State For its US critics, this is the key ‘ﬂaw’ of the ICC Statute. However, there are a number of safeguards which would limit the jurisdiction of the Court over Americans. Under Article 2 of its Statute, the ICC has jurisdiction over the personnel of non-Party States only when these individuals commit crimes under the jurisdiction of the ICC in the territory of a State Party, or in the territory of a state that has chosen to accept the jurisdiction of the ICC. Any crime committed by an American would have to constitute a core crime under the ICC – genocide, crimes against humanity, war crimes – and would be subject to a rigorous threshold for investigation and prosecution, including review and decision by the Pre-Trial Chamber. A major safeguard preventing the investigation and prosecution of US citizens is the principle of complementarity to national legal systems, e.g. that the ICC must defer to national courts’ jurisdiction (Art. 7, 8, 9 of the Statute). The Court may not proceed with any case that is genuinely being investigated or prosecuted by a state which has jurisdiction, or already has been investigated by such a state and the state has decided not to prosecute the person concerned, or the person has already been tried for the same oﬀence. According to Judge Robinson O. Everett of the US Court of Military Appeals58 ... the existing provisions of the Uniform Code of Military Justice and the War Crimes Act [of 996] have already created jurisdiction over war crimes on the part of US court-martial ... Therefore the principle of complementarity set out in the ICC statute would provide the United States with a basis for maintaining that American servicemembers accused of crimes prohibited by the Statute should be tried by a US courtmartial, rather than by the ICC.

The ICC has no independent enforcement powers: the task of apprehending suspects will fall to States, which already have the authority to apprehend suspects within their territory. According to Article 6, the UN Security Council may pass a resolution to prevent or stop the ICC from investigating and prosecuting crimes for twelve months, a renewable request. Finally, as noted by Johansen.59 The continued US insistence that no person should be tried without the consent of his or her national government seems a self-defeating condition, which if established, would enable any world-class criminal to stay out of court. It is diﬃcult to imagine the governements of Saddam Hussein or Slobovan Milosevic consenting to the prosecution of their own crimes.

Friends and Foes of the International Criminal Court

Second objection: the ‘unrestrained’ powers of the Prosecutor The argument is that the Prosecutor’s power under Articles 3 (c) and 5 of the ICC Statute to initiate an investigation proprio motu, coupled with Article 2 jurisdiction over non-Party nationals, may be a potential licence for arbitrary decisions and legal adventurism. Supporters of the Court cite the safeguards already mentioned under the ﬁrst objection. Additionally, the Prosecutor is elected and may be removed from oﬃce under Article 46 2. (b) by the absolute majority of States Parties. Third objection: US military and civilian personnel may be subject to frivolous or politically-motivated charges by the ICC ICC jurisdiction would inhibit humanitarian interventions by the US military and thus undermine the global protection of human rights in the long run. This argument has been used by US oﬃcials in the ‘forced’ negotiation of bilateral agreements and the adoption of UN resolutions providing for the exemption of US peacekeepers from the Court’s jurisdiction. However, the international humanitarian laws governing military conduct, such as the Geneva Conventions, which have been ratiﬁed by the US, are not changed by the ICC Statute. The Court’s Statute integrates crimes already deﬁned in international conventions such as the 948 Genocide Convention, the 949 Geneva Conventions on war crimes, as well as the crimes against humanity in the Nuremberg Charter, the Statutes of the ICTY and the ICTR. Besides all the safeguards cited above, US negotiators have obtained the adoption of Rule 44(2) of the Rules of Procedure and Evidence. This Rule requires that any non-party state invoking an Article 2 procedure would expose its own conduct to the full scrutiny of the ICC, thus discouraging politically-motivated charges and eﬀorts to hold only one state accountable for alleged crimes within a situation. Whether the ICC might, or not, initiate politically-motivated charges – yet to be deﬁned as such – is yet to be seen. The preferred US alternative, that only the Security Council should be able to initiate investigations, would clearly be open to the similar and real charge of politization: the Council is a political body. Fourth objection: The ICC would deprive US nationals of the rights to fair trial as guaranteed by the US Constitution The US Department of Justice has ruled that there are no constitutional barriers to joining the ICC. A few countries (such as France) have made amendments to their Constitution to ensure the applicability of the ICC Statute. According to a July 25, 2000 statement to the House Committee on International Relations on behalf of the American Bar Association, former Assistant General Counsel for International Aﬀairs in the Oﬃce of Secretary of Defense and Legal Adviser to the Department of State Monroe Leigh stated that the ‘Treaty of Rome contains the most comprehensive list of due process protections which has so far been promulgated’. The right to jury trial in the Bill of Rights

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applies only to cases heard in the US. Americans have been extradited for trial abroad for many years, even to judiciary systems not providing jury trials. For Mayerfeld,60 ‘the heart of the matter is the ability of the ICC to act independently of the Security Council, and thus to evade the veto exercised by the United States as one of the ﬁve permanent Council members’. However, the veto ensures their own exemption, and the exemption of their close allies from becoming the receiving end of human rights enforcement measures. ‘The driving force behind American opposition to the ICC is a reluctance to surrender the immunity from enforcement action which the United States enjoys under the current international legal order’.6 While rejecting the jurisdiction of an international court, the US favours the temporary establishment of temporary ad hoc courts empowered to prosecute speciﬁc persons for speciﬁc crimes in speciﬁc countries for speciﬁc periods of time, courts established by the Security Council and therefore subject to the US veto. The US has no objection to international courts judging non-US citizens. It rejects international legal rules and judicial obligations which would apply to its own nationals. To this charge, US representatives reply that the US has a mature, stable judicial system which is fully capable of investigating and taking action, where appropriate, of all allegations of misconduct by members of the US military. If this is correct – and the military trials of those soldiers allegedly responsible for the Abu Ghraib abuses will give evidence on this point – there is no reason for the US to fear any interference by the ICC as its Statute gives primary jurisdiction to national courts. Will Russia ratify the Statute?

Russia, another permanent member of the Security Council, signed the Statute on 3 September 2000. On 7 December 2003, in a meeting in Buenos Aires, the Russian and Argentine foreign ministers Igor Ivanov and Rafael Bielsa renewed their commitment to the creation of the ICC.62 Argentina has ratiﬁed the Statute on 8 February 200. A conference organized in February 2004 by the Russian Association of International Law and the International Committee of the Red Cross’s regional delegation to Russia examined the work carried out by the working group set up by the Russian Ministry of Justice to bring the country’s domestic criminal legislation in line with the Rome Statute.63 However, a major obstacle to ratiﬁcation by Russia is its continuing record of grave human rights violations in the Chechnya war. The ﬁrst Chechnya war, from December 994 to August 996, caused more than 50 000 deaths. The second war started in December 999 with the return of Russian troops in secessionist Chechnya and mass bombings, resulting in a refugee exodus of about 250 000 civilians. Since then, Russian troops have been denounced for unsanctioned human rights crimes with the blessing if not the encouragement of the highest authorities in Moscow. President Putin has included his Chechnya war,

Friends and Foes of the International Criminal Court

a war against a secession, as a legitimate ‘war against terrorism’, with the assent of Western leaders. In addition to the denunciations by Amnesty International and other human rights groups, a few IGOs have expressed serious concern about the continuing war and related human rights abuses. In June 2003, the UN Human Rights Committee [r]emained deeply concerned about continuing substantiated reports of human rights violations in the Chechen Republic, including extrajudicial killings, disappearances and torture, including rape. The Committee notes that 54 police and military personnel have been prosecuted for crimes committed against civilians in Chechnya, but remains concerned that the charges and sentences handed down do not appear to correspond with the gravity of the acts as human rights violations. The Committee is also concerned that investigations into a number of large-scale abuses and killings of civilians in 999 and 2000, in the locations of Alkhan, Novye Aldy and Staropromyslovskii district of Grozny, have still not been brought to a conclusion. The Committee acknowledges that abuse and violations against civilians also involve non-State actors, but reiterates that this does not relieve the State party of its obligations under the Covenant [the International Covenant on Civil and Political Rights]. In this regard, the Committee is concerned about the provision in the Federal Law ‘On Combating Terrorism’ which exempts law enforcement and military personnel from liability for harm caused during counter-terrorist operations.64

The experts of the Council of Europe’s Committee for the Prevention of Torture who visited Chechnya in May 2003 issued a public statement which included the warning that ‘a state must avoid the trap of abandoning civilised values’. In its recommendation to the Council on EU-Russia relations, the European Parliament noted in February 2004 that over the last decade, the war in Chechnya has left over 200 000 people dead out of an original population of one million inhabitants, turned hundreds of thousands into refugees, left tens of thousands injured, tortured, handicapped or traumatised and caused tens of thousands of deaths among the Russian military.The Parliament was alarmed by instances of applicants to the European Court of Human Rights and of members of their families disappearing or being killed. Chechnya was not only an ‘internal aﬀair’ of Russia, in that violations of human rights are threats to international security felt in some neighbouring countries. The Parliament also noted the continuing absence of a credible peace and reconciliation process.65 If Russia becomes a State Party to the Statute, the ‘situation’ in Chechnya is likely to be referred to the ICC either by another State Party, or by the Prosecutor. This probably explains why Russia has not initiated the ratiﬁcation of the Statute after signing it.

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China’s tacit opposition

On 7 July 998, China voted against the creation of the Court, together with the USA and ﬁve other countries. In contrast with the USA, China has not adopted a public, aggressive stance against the Court, although it found the Statute ‘riddled with deﬁciencies’. The Chinese Society of International Law was host to the Symposium on the Comparative Study of International Criminal Law and the Rome Statute, held from 5-7 October 2003 in Beijing. The analysis of papers focusing on constitutional, sovereignty and criminal law issues relating to the Rome Statute was based on the national experience of 3 countries, including France, the UK and the USA. The meeting was attended by ICC and ICTY judges, scholars, European Commission representatives and Chinese individuals (in their personal capacity) from the State Council, the Supreme Court, the Supreme Procuratorate, the Foreign Ministry, Ministry of Justice, the Central Military Committee, the Academy of Social Sciences and law professors from 20 universities. In spite of this gesture, as Russia, China may feel vulnerable to possible referrals to the Court in view of its violations of human rights and abuses in Tibet and in the Xinjiang Uighur Autonomous Region. It is therefore unlikely that China would sign and ratify the Rome Statute in the near future. Conclusion As already mentioned in the previous Chapter, the Court is facing the ﬁerce opposition of the USA. Out of the ﬁve permanent members of the Security Council, only France and the UK have ratiﬁed the Rome Statute. Why is the US, a mature democracy, with an eﬀective balance of powers and a working judicial system, so opposed to the Court? After all, the US launched the international criminal justice’s ﬁrst experiment with the Nuremberg trial. It is the main political, legal and ﬁnancial supporter of the ICTY, ICTR and of the Sierra-Leone national-international court. It has helped create the Cambodia court. Many US legal scholars and judiciary experts, and US-based human rights groups have been and still are eﬀective promoters of international justice. However, the US is not a champion of international law. It has ratiﬁed human rights treaties only after many other countries had done so. For instance, it took 40 years to ratify the Genocide Convention, 26 years for the International Covenant on Civil and Political Rights. It has not ratiﬁed the Optional Protocol to that Covenant (OP), administered by the Human Rights Committee, nor the second Optional Protocol (OP2) which aims at the abolition of the death penalty. The US has ratiﬁed the 949 Geneva Convention, but not its two 977 Additional Protocols. It ratiﬁed the Torture Convention of 984 in 994. It has signed but not ratiﬁed the Convention on the Rights of the Child, nor its two Optional Protocols. It has signed but not ratiﬁed the 969 Vienna Convention on the Law of Treaties, which outlines countries’ obligations to international treaties. It has

Friends and Foes of the International Criminal Court

recently announced that the US will not be bound by the Convention: its Article 8 stipulates that signatories to international treaties cannot make moves to undermine treaties they have signed, even if they have not ratiﬁed those instruments.66 The US, as a self-determining entity, is reluctant to subordinate the national will to international rules, and even less to international justice. The US exceptionalism is based on its history, its political, legal and religious culture, now reinforced by the knowledge that it has no political, economic nor military rival. Americans believe that their political system is the most successful political project in history, well above that of other countries, and have no wish to be ruled or restrained by non-democratic countries, including judges from those countries. The US does not accept that the rule of international law should override American sovereignty, although it promotes the rule of law at the internal national level.67 The US withdrew from the compulsory jurisdiction of the International Court of Justice following the Court’s adverse ruling in the Nicaragua case in 984. More concretely, the US government has been strongly opposed to any international court which could potentially assert jurisdiction over US oﬃcials for war crimes, crimes against humanity, or torture, as deﬁned by international conventions, allegedly committed by US forces in the past (although these would be excluded from the ICC jurisdiction, which applies only as from the entry into force of the Rome Treaty on  July 2002, and only to States Parties): mass bombings of Dresden and Hamburg during World War II, nuclear bombing over Nagasaki and Hiroshima, war crimes during the Vietnam war, the US aerial bombardment of Laos and Cambodia in 969-973,68 the 983 invasion of Grenada, the 986 bombing of Tripoli, the 989 invasion of Panama, the 99 and the 2003 Iraq wars, the US-led NATO air bombing against the Federal Republic of Yugoslavia in 999. What has been called the ‘Kissinger Factor’ appears to be a major element in the Bush administration’s position with regard to the Court: the inacceptable possibility that senior US oﬃcials might be called to answer before international courts for the consequences of their political/military decisions on concerned populations.69 Friends of the ICC are not enemies of the US. They are trying to convince the US that it is in its own best interests to join the Court. The Council of the EU has recalled that the European Union and the US fully share the objective of individual accountability for the most serious crimes of concern to the international community. For the Secretary-General of the UN ‘the best defence against evil will be a court in which every country plays its part’. A Swiss oﬃcial reﬂected the common position of many friends of the US by saying: ‘I don’t believe in confrontation in getting the US on board. The best way to win a party over is by dialogue and conviction. What we can do is strengthening the coalition of those countries in favour of the ICC, to show that it exists, that it is a strong institution and that it will work’.70 Perhaps the best arguments to convince Americans of the value of the ICC are to recall that the US has been the pioneer of the global ﬁght against impunity,

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to stress that the creation of the ICC, its standards and rules fully reﬂect American values, and that the ICC leaves primacy of jurisdiction to national courts. The opposition and absence of the US is a major obstacle to the development of the ICC as a viable, credible and eﬀective international institution. If it adopted a more constructive stance, the US could play a key role in promoting its own beliefs in the rule of law at the national and international levels. After all, one the main beneﬁts that the Court could produce is the reinforcement of national justice systems in countries. The Court would beneﬁt from American legal expertise and experience in the ad hoc international criminal tribunals. As a State Party, the US would be in a unique position to exert inﬂuence from within on the development of the Court, rather than playing the part of the odd state out. The appointment of a US judge and other US judicial members to the Court would add to the desirable universality of the ICC and to its credibility. The creation of the Court is a signiﬁcant and innovative advance in international criminal law and justice. It has raised tremendous hopes around the world. Its paralysis or fall would be a damaging blow to the global ﬁght against impunity and, more generally, to human progress. Notes See ‘ICC Update’ Special Edition on the Assembly of States Parties, A Publication of the NGO Coalition for the ICC, October 2003, p. 7 and ‘The International Criminal Court MONITOR’, Issue 26, February 2004, p. 7. 2 The need to safeguard the ‘integrity’ of the Rome Statute arises from the US campaign against the ICC requesting the exemption of US nationals from the ICC jurisdiction. 3 See http://www.iccnow.org/buildingthecourtnew/updatefromthehoststate.html 4 Comments made by countries on the ICC during the 58th session of the UN General Assembly . 5 Press Conference with President Carlo Ciampi following ratiﬁcation of the Rome Statute of the ICC, ‘Secretary-General’s opening statement’  April 2002 – ‘Secretary-General’s Statement to the Inaugural Meeting of Judges of the ICC’,  March 2003. 6 Resolution. ICC-ASP/2/L.4, 0 September 2003. 7 Amnesty International, ‘The International Criminal Court, Fact Sheet 8, Ensuring justice for children’,  August 2000 – , ‘UNICEF ED calls for ICC’, 9 May 997. 8 ,  March 2003. 9 Africa News, ‘Liberia; War Crimes Charges Hang Over Warring Parties’, 7 November 2003. 0 UN Wire, ‘Security Council Examines UN Role in “Rule of Law”’, Jim Wurst, 25 September 2003, and UN Doc. S/PRST/2003/5, 24 September 2003.  Oﬃcial Journal of the European Communities, 2.6.200 L. 55/9. 2 Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia. 

Friends and Foes of the International Criminal Court 3 4

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6 7 8 9 20 2 22 23 24 25 26

27 28

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‘Top Judge at world war crimes tribunal aims to convince US, others to sign up to court’, Constant Brand, Associated Press Worldstream, 28 October 2003. PGA was established in 978-979 in Washington, DC, USA. It has 300 members representing 0 parliaments. Its Statutes set democratic criteria for membership. The Assembly of September 203 was supported by the European Commission (EU), Canada, The Netherlands, Switzerland, the Ford Foundation and the Permanent Mission of Sweden to the UN. The IPU was created in 889. It has 4 member parliaments, constituted in conformity with the laws of sovereign states. The 09th Assembly, on the Role of Parliaments in assisting Multilateral Organizations in ensuring Peace and Security and in building an International Coalition for Peace, adopted its resolution on 3 October 2003. The International Criminal Court MONITOR, Issue 26, February 2004. Res. 336 (2003)[], 25 June 2003. ‘Rights watchdog approves UN resolution protecting aid workers’, Agence France Presse, 27 August 2003. See , 5-6 November 2002. See , 5 November 2003. Statement of 6 December 2002. Members of the Common Market of the South (Mercosur) are Argentina, Brazil, Paraguay and Uruguay. CARICOM, Press Release 7/2003, 0 May 2003. Resolution No. /03, 24 October 2003: see . Res. AG/RES.2039 (XXXIV-0/04), 8 June 2004, . ICRC Doc, ‘Establishing an International Criminal Court, towards the end of impunity’, February 998. ICRC Oﬃcial Statement on ‘The Establishment of the ICC’, 4 October 2002 – ICRC Press Release,‘ICRC welcomes inaugural session of the ICC’,  March 2003. See also Oﬃcial Statement by Jacques Forster, Vice-President of the ICRC, ‘Rome Statute of the ICC; Implementation at the national level’, 4 February 2004. Bangkok Post, ‘Thaliand urged to join pact on International Crime Court’, by Achara Ashayagachat, 7 September 2003. Information in this paragraph is drawn from ‘How Activists Shaped the Court’ by Marlies Glasius, December 2003 in . The International Criminal Court MONITOR, Issue 26, February 2004. ICC-ASP/2/Res.8, September 2003. Public Diplomacy Query, Doc. 25, 2 January 200 – Doc. 53, 2 January 200, Doc. 3, 3 January 200. See . Human Rights Watch challenges the US claim that Article 98 was designed speciﬁcally to allow a country like the US to obtain an exemption from ICC jurisdiction. Article 98 was included in the Rome Statute to provide an orderly and rational process for the handling of suspects among states cooperating with the Court. For HRW,

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it was not intended to allow a state that has refused to cooperate with the Court to negotiate agreements that secure exemption for its citizens or otherwise undermine the eﬀective functioning of the Court: see HRW, ‘Bilateral Immunity Agreements,’ 20 June 2003. See ‘US Bilateral Agreements Relating to ICC’, in The American Journal of International Law, Contemporary Practice of the US, No. , January 2003, pp. 200-203. Los Angeles Times, ‘No give for US on Tribunal; the White House plays hardball with foreign aid to ensure that citizens are shielded from the International Criminal Court’, by Paul Richter, 28 September 2003. Council of Europe, Resolution 300 (2002), 25 September 2002. Council of Europe, Resolution 336 (2003), 25 June 2003. Parliamentarians for Global Action (PGA), Memorandum, ‘ACP-EU Joint Parliamentary Assembly aﬃrms principle of compensation for developing countries suﬀering consequences of bilateral non-surrender campaign’, 6 October 2003. Human Right Watch, ‘Letter to Colin Powell on US Bully Tactics Against the International Criminal Court’, 30 June 2003. Coalition for the ICC, ‘NGOs Urge Bolivia to Resist UN ICC Immunity Agreement’,  June 2004. UN Doc. S/PV.4568, 0 July 2002. UN Doc. S/PV.4772, at 25-26. Statement of 3 July 2002 at a Special Plenary in the 0th Preparatory Commission for the ICC, unoﬃcial record by the NGO Coalition for the ICC. Mr Nicholas Rostow, General Counsel, US Mission to the UN, 6th Committee of the 57th session of the General Assembly, Agenda Item 58, 4-5 October 2002. Daily Bulletin, US Mission to the UN in Geneva, 3 June 2003. UN Doc. S/PV.4772, at 23-24. ‘Secretary.General’s statement to the Security Council on the renewal of a resolution regarding the International Criminal Court and peacekeeping’, 2 June 2003. Coalition for the ICC, ‘NGOs Condemn Broad Immunities in Security Council Resolution on Multinational Deployment in Liberia, US Arm-Twisting Leads to Violations of National and International Law, NGOs Say’,  August 2003. Press Release, Parliamentarians for Global Action, 2 May 2004. The new resolution was also opposed by the FIDH – ‘Bush negotiates future impunity for American soldiers’, Press Release, 24 May 2004. See and , 7 June 2004. Coalition for the ICC, Media Advisory, 23 June 2004, ‘Global Support for the International Criminal Court Reaﬃrmed, Legitimacy of the Security Council preserved’ – and Le Monde, 25 June 2004. Lee A. Casey and David B. Rivkin, Jr, in National Review,  November 2002. Gary T. Dempsey, Cato Policy Analysis No. 3, 6 July 998. See for instance: David Davenport, Stanford, Calif., ‘Commentary: New Threat to US Sovereignty’, UPI, 27 August 2003. . US Mission to the European Union, ‘US will not sign on to the International Crimnal Court, Bush says’, 2 July 2002 – .

Friends and Foes of the International Criminal Court 56 Particularly John R. Bolton, US Under Secretary for Arms Control and Interna-

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tional Security – ‘American Justice and the International Criminal Court, Remarks at the American Enterprise Institute’, 3 November 2003, http://www.state.gov/t/us/ rm/2588.htm – see also ‘The US Government and the International Criminal Court, Remarks to the Parliamentarians for Global Action’, by Lincoln P. Bloomﬁeld, Jr, US Assistant Secretary for Political-Military Aﬀairs, 2 September 2003 . Among the ICC supporters: Robert C. Johansen, ‘US Opposition to the International Criminal Court: Unfounded Fears’, The Joan B. Kroc Institute, Policy Brief No. 7 (June 200), -Benjamin B. Ferencz, ‘Misguided fears about the International Criminal Court’, 5 December 2002, Pace International Law Review, Spring 2003. For a legal and political analysis, see Jamie Mayerfeld, ‘Who Shall Be Judge?: The United States, The International Criminal Court, and the Global Enforcement of Human Rights’, in Human Rights Quarterly 25 (2003) 93.29. Quoted by the Washington Working Group on the ICC. See , 30 July 200. See Note l, Johansen, p. 3. See Note l, Mayerfeld, p. 05. Ibid., p. 9. BBC Monitoring International Reports, Argentine, Russian Ministers Agree Argentine-UK Falklands Talks Must Continue’, 8 February 2003. ICRC Oﬃcial Statement by Jacques Forster, ‘Rome Statute of the International Criminal Court: Implementation at the national level’, Moscow, 4-5 February 2004. Oﬃce of the High Commissioner for Human Rights, ‘Concluding observations of the Human Rights Committee: Russian Federation, 06//2003, Consideration of reports submitted by States Parties under Article 40 of the Covenant’, CCPR/CO/79/RUS. ‘European Parliament recommendation to the Council on EU-Russia Relations’, 26 February 2004. Go Between, UN NGO Liaison Service, No. 9, April-May 2002. See ‘Why the United States is So Opposed’, by Paul W. Kahn, Crimes of War Project, December 2003 See ‘Holding individual leaders responsible for violations of customary international law: the US bombardment of Cambodia and Laos’, by Nicole Narrett, in The Columbia Human Rights Law Review 32:429 (200). See Beigbeder (2002), pp. 60-62, and ‘The Kissinger Factor and US Policy on the International Criminal Court’, Crimes of War, , 5 November 2002. ‘Conclusions of the Council of the European Union on the ICC’, 30 September 2002, ‘Secretary-General’s opening statement’ at Press Conference with President Carlo Ciampi following ratiﬁcation of the Rome Statute,  April 2002 – Swiss News, ‘Interview with Paul Seger’, Director of Public International Law at the Swiss Foreign Ministry., 26 May 2004.

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INTERNATIONAL CRIMINAL TRIBUNALS AND THE INTERNATIONAL COURT OF JUSTICE

The International Court of Justice (ICJ) is a principal organ of the UN and ‘the principal judicial organ of the United Nations’. Its Statute forms an integral part of the UN Charter, which came into force on 24 October 945. The Court has jurisdiction in all legal disputes concerning, in part, ‘the existence of any fact which, if established, would constitute a breach of an international obligation’ and ‘the nature and extent of the reparation to be made for the breach of an international obligation’. The Court may thus order a state to pay another state a set amount of reparation. However, as a fundamental diﬀerence between the ICJ and the international criminal tribunals, the ICJ judges states, while the latter judge individuals. The Court may also give advisory opinions on ‘any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request’: these bodies are the UN General Assembly, the Security Council, other organs of the UN and UN specialized agencies.2 Besides the ICJ, a number of other global or regional international tribunals have been created by international conventions or treaties. These tribunals review and adjudicate disputes between states under international law, within the competence given to them by their Statute. Their competence, at the international level, is comparable to that of civil courts in the national context. International criminal courts judge individuals, not states, within the competence given to them by their Statute, by reference to international criminal law, international humanitarian law, and more generally, international law. Their competence, at the international level, is comparable to that of criminal courts in the national context. The main structural diﬀerence between the national and international contexts is that national tribunals are placed in a hierarchy of bodies, where lowerlevel courts are subject to the judiciary authority of a high court (US Supreme Court, French Cour de Cassation, Conseil d’Etat and Cour Constitutionnelle) for appeal and review: the judgments of the lower courts may be revised or annulled by the supreme court.

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At the international level, in the absence of a world government, there is no such organized and centralized structure: there is no ‘integrated judicial system operating an orderly division of labour’ among the tribunals. In international law and justice, every tribunal is a self-contained system (unless otherwise provided): there is no hierarchical relationship between the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), the International Criminal Court (ICC), and the ICJ. The Statutes of the former do not provide for any such hierarchy, nor even for any formal relationship. One could envision, at the international level, a hierarchical structure: the ICJ as the world’s supreme court, as the main judiciary authority on setting and interpreting international law, while specialized tribunals would abide by the ICJ decisions on international law, request advisory opinions from the ICJ and perhaps use the ICJ as a ﬁnal appeals court to their judgments. There is a UN link between the ICJ, the ICTY and the ICTR: the ICJ is a principal organ of the UN, the ICTY and the ICTR are (temporary) subsidiary bodies of the Security Council. Even though the ICC is independent from the UN, and, in accordance with the Relationship Agreement between the Court and the UN ‘The United Nations and the Court respect each other’s status and mandate’ (Art. 3), there is a link between the ICC and the UN: the Preamble of the Rome Statute reaﬃrms the Purposes and Principles of the UN Charter and establishes the Court as an independent body ‘in relationship’ with the UN system, but not in a hierarchical relationship. It also gives a auxiliary, non-political and independent judiciary role to the ICC within the UN general mandate of maintaining peace and security: the ICC has jurisdiction over persons for the most serious crimes of international concern – as such grave crimes threaten the peace, security and well-being of the world, the ICC’s role in preventing and sanctioning such crimes is a separate and autonomous contribution to the UN’s role in world peace and security. There is even a tenuous link between the ICJ and the ICC: under Article 5 .(b)(ii) of the Relationship Agreement, the ICC Registrar shall Furnish to the United Nations, with the concurrence of the Court and subject to its Statute and rules, any information relating to the work of the Court requested by the International Court of Justice in accordance with its Statute.

However, there is nothing in the respective Statutes of these courts that provide speciﬁcally for a hierarchical or functional relationship between the international criminal tribunals, the ICC and the ICJ. In the Celebici Case,3 the Appeals Chamber aﬃrmed that ‘this Tribunal [the ICTY] is an autonomous international judicial body, and although the ICJ is the “principal judicial organ” within the UN system to which the Tribunal belongs, there is no hierarchical relationship between the two courts. Although the Tribunal will necessarily take into consideration other decisions of international courts, it may, after careful consideration, come to a diﬀerent conclusion’.

International Criminal Tribunals and the International Court of Justice

The successive Presidents of the ICJ have alerted the UN General Assembly and the Security Council to the problems raised for international law and the international community by the proliferation of international courts. In his address to the UN General Assembly on 26 October 2000, Judge Gilbert Guillaume, then President of the ICJ, praised this phenomenon as reﬂecting greater conﬁdence in justice and allowing international law to develop in ever more varied spheres.4 Cited problems were cases of overlapping jurisdiction, i.e. forum shopping (not a problem for international criminal tribunals) which ‘may indeed stimulate judicial imagination, but it can also generate unwanted confusion. Above all, it can distort the operation of justice, which, in my view, should not be made subject to the law of the marketplace’. Overlapping jurisdiction exacerbates the risk of conﬂicting judgments, as a given issue may be submitted to two courts at the same time and they may hand down inconsistent judgments. Judge Guillaume stressed the serious risk of conﬂicting jurisprudence, as the same rule of law may be given diﬀerent interpretations in diﬀerent cases: ‘This is a particularly acute risk, as we are dealing with specialized courts that are inclined to favour their own disciplines’. He then cited the Tadic case as one of several examples of risks to the cohesiveness of international law raised by the proliferation of courts. Issues in the Tadic Case The main conﬂict between the ICTY and the ICJ arose when the former disregarded the jurisprudence formulated by the ICJ in the Nicaragua case.5 The Court had found that the US could not be held responsible for acts committed by the contras in Nicaragua unless it had had ‘eﬀective control’ over them. In its decision of 5 July 999, the Appeals Chamber of the ICTY rejected the position of the Trial Chamber by ﬁnding that at the relevant time and place, there was an international armed conﬂict because ‘overall political and military authority over the Republika Srpska was held by the Federal Republic of Yugoslavia (control in this context included participation in the planning and supervision of ongoing military operations)’. After criticizing the position taken by the ICJ,6 the ICTY adopted a less strict standard for Yugoslavia’s action in Bosnia and Herzegovina by replacing the notion of ‘eﬀective control’ with that of ‘overall control’, thereby broadening the range of circumstances in which a state’s responsibility may be engaged on account of its actions on foreign territory.7 Another issue had already set the ICTY against the IJC. In a motion ﬁled with the Trial Chamber of the ICTY in June 995, Dusko Tadic’s counsels challenged the jurisdiction of the Tribunal, in part, on the grounds that it had not been established in a valid manner, because the Security Council lacked the power to do so.8 The Prosecutor (Richard Goldstone) took the position that the Tribunal did not have authority to decide on the issue: ‘This International Tribunal is not a constitutional court set up to scrutinize the actions of organs of the United Nations. It is, on the contrary, a criminal tribunal with clearly deﬁned powers, involving a quite speciﬁc and limited criminal jurisdiction. If it is to conﬁne its

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adjudications to those speciﬁc limits, it will have no authority to investigate the legality of its creation by the Security Council’. The Trial Chamber agreed, holding that the question was ‘pre-eminently a matter for the Security Council and for it alone and no judicial body, certainly not this Trial Chamber, can or should review that step’: for the Chamber, the question was political and therefore ‘nonjusticiable’. On 2 October 995, the Appeals Chamber rejected this conclusion, ﬁnding instead that its inherent ‘incidental’ power to determine the propriety of its own jurisdiction (compétence de la compétence) permitted review of the legality of the Security Council’s action in establishing the Tribunal.9 This ﬁnding ran contrary to the case law of the ICJ, which had declared in several judgments that it lacked the power to review the legality of Security Council’s decisions. Legal specialists objected to the ICTY ﬁnding on the grounds that a subsidiary court (the Tribunal) could not, or should not deviate from the jurisprudence of the ICJ, the principal judicial organ of the UN. On the other hand, as noted by Scharf,0 the decision of the Tribunal to conﬁrm the legality of its establishment precluded Tadic’s lawyers from arguing the issue during his trial and it ensured that other defendants or government authorities would not be able to raise challenges to the legitimacy of the Tribunal in domestic courts in an eﬀort to resist complying with the Tribunal’s orders to surrender an accused or hand over evidence. Concurrent Procedures before the ICJ and the International Criminal Tribunals Although the ICJ judges states and the international criminal tribunals judge individuals, common issues have been considered by both types of tribunals, with the potential for diﬀerent interpretations of the same conventions, treaties and other international texts. For instance, the serious violations of international humanitarian law for which the ICTY has competence include grave breaches of the Geneva Conventions of 949, violations of the laws or customs of war, genocide and crimes against humanity. The ICTR has the same competence, except for violations of the laws and customs of war. The ICJ has a broad competence in all legal disputes concerning ‘any question of international law’. It may be requested by the UN General Assembly or the Security Council to give an advisory opinion ‘on any legal question’. Many of the cases brought to the ICJ concern territorial disputes, states’ complaints of the treatment of its nationals in another state. Its jurisprudence has also included environmental law, human rights and humanitarian law, the latter two being of direct interest to the international criminal tribunals in terms of interpretation of conventions.

International Criminal Tribunals and the International Court of Justice

The Genocide Convention

The ICJ has ruled on several occasions on the substance and scope of the UN Convention of 9 December 948 on the Prevention and Punishment of the Crime of Genocide (the ‘Genocide Convention’). In its Advisory Opinion 28 May 95, the ICJ stated ... it was the intention of the United Nations to condemn and punish genocide as ‘a crime under international law’ involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and the spirit and aims of the United Nations.

The Court’s view was that ‘the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation’.2 In the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia, the ICJ held, in a judgment of  July 996, that it had jurisdiction to rule on Bosnia and Herzegovina’s Application. The Court held that, where the Convention is applicable, it is unnecessary to seek to ascertain whether or not the acts complained of were committed in the course of an armed conﬂict, whether domestic or international. The Court further stated that the obligations incumbent upon each state under the Convention to prevent and punish the crime of genocide are not territorially limited, although the Convention restricts jurisdiction to try the alleged perpetrators of such crimes to the courts of the state in whose territory the act was committed. Finally, the Court made it clear that the Convention envisaged state responsibility not only where that state had failed in its obligations of prevention and punishment as contemplated by the text, but also where it had itself committed the crime of genocide.3 The interlocutory appeal of Zoran Zigic

The Appeals Chamber of the ICTY rendered a Decision on 25 May 200 which, in short, aﬃrmed that there is no legal basis for suggesting that the Tribunal must defer to the ICJ such that the former would be legally bound by Decisions of the latter, and – that the Tribunal would consider any Decisions of the ICJ subject to its competence to make its own ﬁndings.4 On 24 October 2000, the accused Zoran Zigic ﬁled a ‘Motion Regarding Concurrent Procedures Before International Tribunal for the Former Yugoslavia and International Court of Justice on the Same Questions’ before the Trial Chamber, in which reference was made to the ICJ Case Concerning the Application of the Genocide Convention. The applicant requested the suspension of any decision by the ICTY on questions pending before the ICJ or a ruling that the ICTY would not decide upon the same legal and factual questions as the

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ICJ and further requested that the Trial Chamber obtain an advisory opinion from the ICJ. On 5 December 2000, Trial Chamber I dismissed the Motion. On 2 December 2000, the Appellant ﬁled a Motion for Leave to Appeal the Trial Chamber’s decision, in which he submitted, inter alia, that, even if the question of a possible contradiction between the ﬁndings of the ICJ and future decisions of the ICTY were based purely on speculation, he sought to prevent two UN judicial organs from making diﬀerent ﬁndings on the same issues and that this constituted an issue of general importance to proceedings before the ICTY or in international law generally. On 6 February 200, a Bench of the Appeals Chamber issued a Decision which agreed that questions as to whether the proceedings in the Trial Chamber should be suspended pending determination of the same or an allied issue by the ICJ and the impact of decisions by each judicial body on the other constitute issues of general importance to proceedings before the ICTY or in international law generally. In his Interlocutory Appeal of  March 200, the Appellant submitted, in part, that the relationship between the ICJ as ‘the principal judicial organ of the United Nations’ and the ICTY could be seen as a relationship between the Security Council and the ICJ as set out in the UN Charter. The Appellant requested the suspension of the proceedings before the ICTY pending a decision by the ICJ on the same or allied issues being considered by both judicial organs. The Appellant asserted that the ICTY has no power to unilaterally decide upon the relationship between decisions of the ICTY and the ICJ and further submitted that the ICTY cannot decide on the same legal and factual questions as in the pending case before the ICJ until an appropriate decision has been delivered by the General Assembly of the UN or an advisory opinion has been rendered by the ICJ. On 2 March 200, the Prosecution aﬃrmed, in part, in his Response that there is no concurrent jurisdiction between the ICJ and the ICTY, in view of the diﬀerences between the mandate and jurisdiction of both institutions – and that the ICTY does not need to defer to the ICJ. As there is no hierarchical relationship between the ICJ and the ICTY, both institutions can apply and interpret international law, and, if they were to hear the same evidence, they could reach diﬀerent conclusions. In its Decision of 25 May 200, the Appeals Chamber recalled the Celibici judgment (see above) and considered that there is no reason to depart from its conclusions: no legal basis exists for suggesting that the ICTY must defer to the ICJ such that the former would be legally bound by decisions of the former. The Appeals Chamber added: 8. Nonetheless, decisions of the International Court of Justice addressing general questions of international law are of the utmost signiﬁcance and the International Tribunal will consider such decisions, giving due weight to their authority. However, the International Tribunal has its own competence. Thus, the International Tribunal would consider any decisions of the International Court of Justice, subject to its competence to make its own ﬁndings. As a result, the International Tribunal may arrive

International Criminal Tribunals and the International Court of Justice at diﬀerent conclusions, and diﬀerences in holdings may occur. This does not justify suspension of the present proceedings until the International Court of Justice has decided any matters pending before that Court. ... 22. Finally, the Appeals Chamber considers that it is not necessary for it to await the rendering of an advisory opinion by the International Court of Justice or the issuing of a decision by the General Assembly of the United Nations before it decides on any legal or factual questions, even if these happen to be the same as questions raised in any pending case before the International Court of Justice.

The Appeals Chamber then dismissed the Interlocutory Appeal. In his Separate Opinion in Laurent Semanza v. The Prosecutor to the ICTR Appeals Chamber’s Decision of 3 May 2000,5 Judge Shahabuddeen had noted That, whereas the Tribunal was established by a principal organ of the United Nations, the ICJ is itself a principal organ of that Organization and, indeed, its ‘principal judicial organ’ as provided by the supreme law of both judicial bodies. ... The lawgiver might reasonably be supposed to have envisaged that the Tribunal would in consequence show deference to, if not take the law from, decisions of the ICJ as to what was customary international law and depart from them only in the clearest and most compelling cases. Subject to such narrow exceptions, when there is a conﬂict in holdings the Appeals Chamber should accordingly be prepared to bring its previous decisions into conformity with those of the ICJ. If not, the consequences may be noted.

Non-conﬂictual Issues and Decisions On some other issues, there seem to be no actual or potential conﬂict between the ICJ and the international criminal tribunals. Criminal responsibility of senior ofﬁcials

The Statutes of the ICTY and the ICTR provide that ‘the oﬃcial position of any accused person, whether as head of State or Government, or as a responsible Government oﬃcial, shall not relieve such person of criminal responsibility nor mitigate punishment’.6 Article 27 of the Rome Statute entitled ‘Irrelevance of ofﬁcial capacity’ conﬁrms and expands on this principle: . This Statute shall apply equally to all persons without any distinction based on oﬃcial capacity. In particular, oﬃcial capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government oﬃcial shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

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Chapter 8 2. Immunities or special procedural rules which may attach to the oﬃcial capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

The Statutes of the ICTY and ICTR have therefore allowed the tribunals to indict and judge senior oﬃcials of the Former Yugoslavia, including its former President, and the whole Rwandan Interim Government, including its Prime Minister. The Appeals Chamber of the Sierra Leone Special Court dismissed on 3 May 2004 a Motion by Charles Taylor to quash his Indictment and to set aside the warrant for his arrest on the grounds that he is immune from any exercise of the jurisdiction of the Court by virtue of the fact that he was, at the time of the issuing of the indictment and warrant against him, a Head of State.7 The Court ﬁrst determined, on the basis of an analysis of its constitutive instruments, that it is a truly international criminal court. After a careful consideration of international jurisprudence, the Court said that the principle seemed now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court. The Appeals Chamber found that Article 6.2 of the Court’s Statute8 is not in conﬂict with any peremptory norm of general international law and its provisions must be given eﬀect by the Court. ‘We hold that the oﬃcial position of the Applicant as an incumbent Head of State at the time when these criminal proceedings were initiated against him is not a bar to his prosecution by this Court. The Applicant was and is subject to criminal proceedings before the Special Court for Sierra Leone’. In its Judgment delivered on 4 February 2000 in the case concerning the ‘Arrest Warrant of  April 2000 (Democratic Republic of the Congo v. Belgium)’,9 the ICJ found that the issue and international circulation by Belgium of the arrest warrant of  April 2000 against Mr. Abdulaye Yerodia Ndombasi failed to respect the immunity from criminal jurisdiction and the inviolability which the Minister enjoyed under customary international law – and that Belgium must cancel the arrest warrant. However, the Court made it clear that immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Aﬀairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. It set four exceptions to its principle of immunity: a Minister in oﬃce can be tried before the criminal courts of his own country, in accordance with the law of that country – his immunity may be waived by his national authorities in favour of a foreign jurisdiction – where a person ceases to hold the oﬃce of Foreign Aﬀairs Minister, he or she will lose all immunity before competent foreign courts in respect of acts committed prior or subsequent to his or her period of oﬃce, as well as in respect of acts committed during that oﬃce in a private capacity – ﬁnally, incumbent or former Foreign Ministers may be tried by international criminal courts or tribunals if their founding Statutes so provide: examples named by the ICJ are the ICTY, the ICTR and the ICC.

International Criminal Tribunals and the International Court of Justice

While the decision is limited by its terms to sitting Foreign Ministers and, by virtue of Article 59 of the ICJ Statute, is binding only on the Democratic Republic of the Congo and Belgium, and only with regard to this particular case, its impact is potentially broader: the judgment indicates that the ICJ would apply a similar analysis to other high- or higher-ranking oﬃcials, including heads of state and of governments. Although the ICJ decision has been found controversial by some analysts,20 it does not seem to have aﬀected in any way the statutory jurisdiction of international criminal courts and tribunals over senior oﬃcials in or out of oﬃce accused of serious crimes against international law, nor to provide them with immunity. The binding force of international tribunals’ judgments

In the Aleksovski Appeals Judgment of 24 March 2000, the ICTY dealt with the question of whether the Appeals Chamber was bound to follow its previous decisions.2 It started with a comparative law study covering both national law and the case-law of international judicial bodies. On the ICJ, the judgment stated: 96. Despite the non-operation of the principle of stare decisis [binding precedent] in relation to the International Court of Justice, its previous decisions are accorded considerable weight. This may be due to their perceived status as authoritative expressions of the law. As Judge Zoricic stated in his Dissenting Opinion in the Peace Treaty case, while ‘it is quite true that no international court is bound by precedents ... there is something which this Court is bound to take into account, namely the principles of international law. If a precedent is ﬁrmly based on such a principle, the Court cannot decide an analogous case in a contrary sense, so long as the principle retains its value ... ... 97. The Appeals Chamber recognizes that the principles which underpin the general trend in both the common law and civil law systems, whereby the highest courts, whether as a matter of doctrine or of practice, will normally follow their previous decisions and will only depart from them in exceptional circumstances, are the need for consistency, certainty and predictability. This trend is also apparent in international tribunals ...

The Appeals Chamber then decided that references to the law and practice in various countries and in international institutions are not necessarily determinative of the question of the applicable law in this matter: ‘Ultimately, that question must be answered by an examination of the Tribunal’s Statute and Rules ...’ The Chamber concluded that ‘a proper construction of the Statute ... yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice’. The reference to the ICJ caselaw, even if discarded by the Appeals Chamber together with law and practice in various countries and international institu-

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tions as not determinative in favour of an examination of the ICTY’s Statute and Rules, has not shown any divergence in ICJ and ICTY ﬁndings and practice. Conclusion As stated by the Presidents of the ICJ, there is a risk of conﬂicting jurisprudence between independent tribunals, and a few actual problems have arisen. The position of the ICJ has been made clear by its Presidents. Former President Gilbert Guillaume said in October 2002 that the ICJ retains an essential role as principal judicial organ of the UN: ‘It alone can address all areas of the law and accord them their proper place within an overall scheme.22 In October 2003, President Shi Jiuyong stressed that [T]he impartiality of the Court’s judicial procedure and the equality of arms which it guarantees to the parties before it – inherent elements in the Court’s nature – without doubt contribute to the eﬀective resolution of such disputes [between States]. In performing its dispute resolution function, the Court, which embodies the equality of all before the law, acts as guardian of international law, and ensures the maintenance of a coherent international legal order ...23

The Presidents have recommended several remedies to the problems caused by the proliferation of courts to the cohesiveness of international law. First, the main onus is on Member States: before creating a new court, the international Legislator should ask itself whether the functions it intends to entrust to the court could not be properly fulﬁlled by an existing court. We might add that if and when a new international court is created, its relationship with the ICJ should be clearly set out. The relationships among international courts should be better structured – a task that only governments can assume. It has been suggested that the ICJ should serve as a court of appeal or review for judgments rendered by other courts. This would require a revision of the Statutes of the ICJ and other courts, a complex and lengthy process, requiring a strong but uncertain political will on the part of states. Secondly, judges should realize the danger of fragmentation of international law and conﬂicts of caselaw. For President Guillaume, a dialogue among judicial bodies is crucial.24 President Schwebel has suggested a broader use of the advisory function of the ICJ by the other tribunals:25 In order to minimize ... signiﬁcant conﬂicting interpretations of international law, there might be virtue in enabling other international tribunals to request advisory opinions of the International Court of Justice on issues of international law that arise in cases before these tribunals that are of importance to the unity of international law. In respect of international tribunals that are organs of the United Nations, i.e. the international tribunals for the prosecution of war crimes in the former Yugoslavia and

International Criminal Tribunals and the International Court of Justice Rwanda, no jurisdictional problem in their requesting the Security Council to request advisory opinions on their behalf appears, should they wish to do so.

For the ICC, a non-UN institution, President Guillaume suggested that, by means of an appropriate resolution, the General Assembly might urge not only the UN-created courts but also those outside the UN system to turn to the Court for advisory opinions through the Assembly.26 In principle, even without any statutory obligation to do so, the international criminal tribunals and the ICC should, in principle, show ‘deference’ to decisions of the ICJ, and, in the words of Judge Shahabuddeen, depart from them only in the clearest and most compelling cases. However, in the Tadic case, considered as the most serious conﬂict between the ICJ and the ICTY, it would seem that the ICTY was right in replacing the notion of ‘eﬀective control’ with that of ‘overall control’ in the interest of eﬀectively fulﬁlling its mandate. Whatever the legal arguments for or against other decisions taken by the ad hoc international criminal tribunals in breach of ICJ decisions, it is likely that they have taken such decisions, and probably will take others, with due regard to their own Statutes and Rules, but also as an assertion of their own specialized competence as new, temporary, innovative jurisdictions. The position of the ICC vis-à-vis the ICJ, remains to be seen. The ICC, as a specialized permanent institution, has a diﬀerent stature from that of the ad hoc tribunals. As a treaty-based institution, its legitimacy vs. States Parties cannot be challenged. It occupies a broad terrain of international law, and its jurisdiction over individuals is diﬀerent and separate from the ICJ jurisdiction over states. Can the ICJ be the sole ‘guardian of international law’ in all its various aspects and branches, over and above the ICC jurisdiction, with its competence on human rights and international humanitarian law, or will the ICJ and the ICC work in parallel and in harmony? Ideally, even if the ICC does not wish to formally defer to the ‘authority’ of the ICJ, which is not required by the Rome Statute, collaboration and dialogue should avoid open conﬂict, and the availability of seeking advisory opinions from the ICJ should not be neglected. Notes  2 3

4 5

UN Charter, Art.7 and 92, Art.  and 36 2. c. and d., of its Statute annexed to the Charter. ICJ Statute, Art. 65  and UN Charter, Art. 96. Prosecutor v. Zejnil Delalic, Zdravko Mucik (aka “Pavo”), Hazim Delic (aka ‘Pavo’), Hazim Delic and Esad Landzo (aka ‘Zenga’), (‘CELIBICI Case’), ICTY , 20 February 200, para. 24. ICJ, ‘Address by H.E. Judge Gilbert Guillaume, President of the International Court of Justice , to the United Nations General Assembly, 26 October 2000. ‘Case concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)’, Judgment of 27 June 986, VI.5.

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9 20

2 22

The Appeals Chamber’s criticisms of the ICJ judgment on Nicaragua were probably not appreciated by the ICJ judges. For instance: ‘The Appeals Chamber found that the Nicaragua ‘eﬀective control test did not seem to be consonant with the very logic of the entire system of international law on State responsibility’, which is not based on rigid and uniform criteria – ... the Appeals Chamber considered that the Nicaragua test is at variance with judicial and State practice’: as quoted in the CELEBICI Case, 20 February 200, paras. 7-8. The European Court of Human Rights had already substituted the criterion of ‘overall control’ to that of ‘eﬀective control’ in the Case of Louzidou v. Turkey (Preliminary Objections), 23 March 995, paras. 56, 58. See also ‘Les interactions des jurisprudences internationales et des jurisprudences nationales’ by Maurice Kamto, in La juridictionnalisation du droit international, Société française pour le droit international, Colloque de Lille, Ed. A. Pedone, 2003, p. 42. See Beigbeder (2002), pp. 74-77. The Prosecutor v. Tadic, Case IT-94-I-AR72, 8-0 (2 October 995, p. 9 – Case IT94-I-T, Decision on Jurisdiction,  (0 August 995) – The Prosecutor v. Tadic, Case IT-94-I-AR72, 8-0 (2 October 995). Michael P. Scharf, Balkan Justice, the Story Behind the First International War crimes Trial Since Nuremberg, Carolina Academic Press (Durham, North Carolina, USA), 997, pp. 04-05. UN Charter, Art. 96. – ICJ Statute, Art. 36.2 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 95, I.C.J. Reports 95, p. 23. As reported in: ‘Speech by His Excellency Judge Gilbert Guillaume, President of the International Court of Justice to the Sixth Committee of the General Assembly of the United Nations’, 30 October 2002, para. 3. Yugoslavia’s Application for a revision of that Judgment was rejected by the ICJ on 3 February 2003. ‘Decision on Interlocutory Appeal by the Accused Zoran Zigic Against the Decision of Trial Chamber I Dated 5 December 2000’, 25 May 200. Case No. ICTR – 97-20-A, para. 32. Art. 7.2 of the ICTY Statute, Art. 6.2 of the ICTR Statute. ‘Summary of Decision on Immunity from Jurisdiction, Prosecutor v. Charles Ghankay Taylor’, Case No. SCSL-2003-0-, 3 May 2004. Art. 6.2 of the Statute of the Sierra Leone Special Court states: ‘The oﬃcial position of any accused persons, whether as Head of State or Government or as a responsible government oﬃcial, shall not relieve such persons of criminal responsibility nor mitigate punishment’. ‘Arrest Warrant of  April 2000 (Democratic Republic of the Congo v. Belgium)’, 4 February 2002: see ICJ Press Release 2002/04bis. For some critics, the ICJ judgment was perceived as a defeat for the concept and practice of universal jurisdiction. More bluntly, Amnesty International believed that the ICJ judgment was incorrect as a matter of law and that it must be reversed: see ‘Belgian Court Has Jurisdiction in Sharon Case to Investigate 982 Sabra and Chatila Killings’, Amnesty International,  May 2002, . Paras. 92-98 and 07. See Note 3 – para. 2.

International Criminal Tribunals and the International Court of Justice 23 ‘Speech by H.E. Judge Shi Jiuyong, President of the International Court of Justice, to

the General Assembly of the United Nations, 3 October 2003, last para. On p. 5.

24 See Note 4, p. 4.

25 ICJ Press Release 99/46, ‘Failure by Member States of the United Nations to pay their

dues transgresses principles of international law, President Schwebel tells United Nations General Assembly’, 26 October 999. 26 See Note 4, p. 5.

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Progress, in spite of defeats? Is international criminal justice now recognized as an important step forward in the unending ﬁght against impunity? Or, have the idealists, the internationalists, the proponents of universal criminal justice, gone too far ahead of political realities, at the risk of failure and irreparable damage to their dreams? What are the facts? First, the reality of a world of many nations, rich or poor, at peace or in conﬂict, with or without democratic governance – and a few ‘failed states’ left to rival warlords and misery. The reality of recurring massacres, genocides, torture, rape in many regions, whose authors are mostly left unpunished. Then, eﬀorts made ﬁrst by idealists, then by politicians, diplomats and jurists, to ‘humanize’ wars: insofar as war cannot be prevented, they aim at limiting deaths, injuries and suﬀering in armed conﬂicts by trying to set non-combatants aside from soldiers and giving them protection. Other eﬀorts are directed towards limiting or banning speciﬁc weapons sought to be ‘calculated to cause unnecessary suﬀering’, including bacteriological and chemical weapons, nuclear weapons, land-mines. The Geneva and The Hague conventions were followed by conventions against genocide, against torture: their ratiﬁcation by states make states responsible for their implementation, by incorporating international conventions into their national legislation, in setting sanctions and applying them to individuals breaching those laws. Under the international law principle of national sovereignty, national states are those responsible to enforce criminal justice: national justice comes ﬁrst, it is part of government structures, close to the population, clear to the people, conscious of its history and culture, the outcome of centuries or years of legal and judiciary progress. Oﬃcers or soldiers charged with violations of the Geneva Conventions and of their own military codes are to be judged by their own military courts. As recent events have shown, such violations have taken place even in the armed forces of democracies. Many countries have no democratic governance, they are run by autocratic leaders whose actions are not limited by any counter-powers. Some of these leaders have committed, ordered or allowed to be committed grave violations

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of international humanitarian law: their country’s national justice cannot limit their power and even less prosecute them for their crimes while they are in oﬃce and detain all related tools of power. Prosecuting them after they have left ofﬁce is rarely easy, particularly if they have found refuge in other countries where they are protected by their friendly former peers. In countries in transition to democracy, national justice is often still dominated by the government and/or the military (for instance, in Indonesia), and is therefore unable or unwilling to prosecute those in power or close to power. In many countries, the national justice system is weak or incompetent. The promotion of democratization in all regions of the world, involving separation of powers and eﬀective checks and balances, is a basic condition for an independent national justice. International Justice If national justice is unable, unwilling or incompetent to judge its countries’ criminal leaders, recourse should be made to international justice. In what circumstances and under what conditions? International justice started with the creation of the Permanent Court of Arbitration in 899 and of the Permanent Court of International Justice in 92, succeeded in 945 by the International Court of Justice (ICJ), the principal judicial organ of the UN. These bodies adjudicate disputes between states only, under the traditional concept that only states are subjects of international law. The ICJ lacks compulsory jurisdiction: sovereign countries retain their right to decide whether they will accept the jurisdiction of the Court. Some states have refused to comply with the Court’s judgments. International criminal justice is a major innovation of the 20th century. International law and international justice opened itself to individuals, both criminal perpetrators and victims. International criminal justice should however not replace national justice: it should intervene only when national justice is unable, unwilling or incompetent to judge alleged criminals. Traditionally, the constituting elements of national criminal justice are retribution (sanctions imposed on violators of the law), reparation to victims, deterrence of further crimes, reintegration into civil society of those who have served their sentence of time imprisonment. The primary object of international criminal justice is retribution: to ﬁght against the impunity often accorded to high-level leaders responsible for grave violations of international humanitarian law, who may enjoy de jure or de facto immunity during their term of oﬃce, and, when removed from oﬃce, may beneﬁt from amnesties, negotiated settlements, diplomatic protection when these leaders have ﬂed from their devastated country, or government-organized amnesia. The role of international tribunals is to identify who are the persons responsible for such grave violations in speciﬁc areas or countries such as war crimes, genocide, crimes against humanity, ﬁnd evidence of their responsibility,

Conclusion

obtain custody of those indicted, and judge them in accordance with a fair procedure, ensuring due process and protecting the rights of the defense. As a second objective, dependent on the ﬁrst, i.e. the judgment and sentencing of the accused, the international judicial process should include restoration to victims, such as restitution of stolen property and other assets, and ﬁnancial compensation. At the minimum, the indictment, prosecution, custody and trial of those who organized massacres and torture should give a measure of satisfaction to victims and their families. Judges should be selected according to their judicial competence and experience, among diﬀerent nationalities, on the example of the ICJ. Structural separation between the independent prosecutors and the independent judges is basic. Other more general purposes, or expectations of international criminal justice are to substitute justice to private or collective revenge, such as endless personal vendettas or retaliatory wars – to deter potential criminals from committing their crimes by assuring them of likely retribution, or forced exile in hiding. An even more ambitious purpose would be to facilitate the reconciliation of former enemies in countries at war, or within a country which has suﬀered from exactions in a civil war. This can only be, at best, a possible, longer-term eﬀect of a well-carried out judicial process, but not its intrinsic role. The ﬁrst generation of international criminal tribunals: Nuremberg and Tokyo

The creation of the Nuremberg tribunal was a revolutionary ﬁrst step: high-level individuals, not states, were to be judged for crimes of aggression, war crimes and crimes against humanity by a newly created international body, an international criminal tribunal. The sentences rendered by the Tribunals were carried out. As noted in the Introduction, Nuremberg and Tokyo were both praised and criticized. Critics charge that both tribunals were political creatures of the victors: only the vanquished were judged, not the victors. In both tribunals, the grounds for prosecution were decided upon by the Allied Powers, and justice was rendered only by the Allied Powers’ judges and prosecutors. In violation of the judiciary principle of non-retroactivity, the tribunals applied the Charters’ law which had been promulgated only after the alleged crimes had been committed: nothing in valid international treaties or conventions provided that high-level leaders would be made responsible before an international tribunal for crimes which were only deﬁned in the post facto Tribunals’ Charters, nor that such an international tribunal would apply sanctions to these individuals for crimes which were previously considered as ‘acts of state’, for which only states could be blamed, exposed to political, economic or military sanctions, or possibly condemned to only ﬁnancial sanctions. On the positive side, the tribunals substituted a fair judicial process to popular raw vengeance. The level of atrocities committed by the Nazis and the Japanese could not be left unpunished, they deserved formal condemnation. Focus-

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ing the whole blame on a few high-level dignitaries decreased the risk that all the German and Japanese peoples would be assigned the lasting burden of collective guilt. With all their faults, Nuremberg and Tokyo made a signiﬁcant contribution to international criminal law and justice. They established the principle and practice that individuals at the highest levels of government and armed forces could be prosecuted and punished by an international tribunal for serious violations of international humanitarian law. They established international individual responsibility for crimes against peace, war crimes and crimes against humanity. The documentation researched and assembled for the trials have established irrefutable proof of the Holocaust and its authors, giving historians an invaluable source of records. Finally, the Nuremberg Precedent has provided an essential historical, legal and judiciary reference for the later creation of the Tribunals for the Former Yugoslavia and for Rwanda. It has also contributed to the elaboration by the International Law Commission of the Draft Code of Crimes against the Peace and Security of Mankind and to the drafting of the Statute of the International Criminal Court. Even if both tribunals were ﬁrst condemned or ignored by the German and the Japanese populations as victors’ justice, their judgments have taken their place in the collective memory of the people. They probably have been one key element in the development of democracy in both countries. For Germany, Nuremberg has been a basis for later reparation measures approved by German governments to victims or their survivors. For both Germany and Japan, a large degree of paciﬁsm ﬁnds its root not only in measures imposed by the victors, but also as a reaction against bellicism and the horrors of war, exempliﬁed by the trials. The second generation: Yugoslavia and Rwanda

The second generation of international criminal tribunals was born 47 years after the Nuremberg judgments were rendered. Both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were created by the UN Security Council, which gave them a higher degree of legitimacy than the Nuremberg and Tokyo Charters willed by the victors of World War II. Still, the decisions of the Security Council to create these tribunals have been challenged as outside or beyond the mandate given to the Council by the UN Charter, and by challenges to the legitimacy of the Council itself, considered as less representative than the General Assembly. The Council’s decisions to create the Tribunals was itself deemed to be the result of political expediency, rather than a conversion of states to the ideals of international justice. The ICTY’s creation was felt to be an alibi or a substitute for preventive action or military intervention which Western countries were loath to take, or to take on time: the Srebrenica massacre was even allowed to take

Conclusion

place after the creation of the Tribunal.. The same criticism may be addressed to the ICTR, a post facto ineﬀective remedy to the accomplished genocide. On the positive side, both tribunals are truly international, an improvement over Nuremberg and Tokyo: international judges (although the ICTY has no judge from the Former Yugoslavia, and the ICTR has no Rwandan judge). National tribunals in the Former Yugoslavia were deemed unable or unwilling to provide fair justice, or even only justice, to alleged criminals in their region, particularly if they were nationals of their own divided state. National tribunals in Rwanda had been decimated by the genocide and had neither capacity nor competence to initiate fair trials. Hence the justiﬁcation for international tribunals as a legitimate substitute for national justice, in order to ensure that war crimes, crimes against humanity and genocide would not go unpunished. The International Criminal Tribunal for the Former Yugoslavia (ICTY)

The ICTY had a slow start mainly due to the initial lack of support from the ‘godfathers’ of the Tribunal – the Western countries and the UN secretariat – the lack of cooperation of NATO, Serbia and Croatia, in obtaining custody of indicted persons – a change of strategy by the Prosecutors from available ‘small ﬁsh’ to ‘big ﬁsh’ – a slow start but a fair judicial process. In spite of these many problems, the ICTY has ﬁnally obtained custody of major military and civilian actors, including former President Milosevic, but with the glaring exception of Karadzic, the former Bosnian Serb leader and Mladic, the Bosnian Serb general accused of overseeing the Srebrenica massacre, among other charges. The number of voluntary surrenders and the number of accused pleading guilty have reinforced the legitimacy of the Tribunal. On the negative side, the independence of the ICTY has been challenged, as a ‘political tool’ of the US, the Western Powers and NATO. Indeed, the Tribunal has no independent enforcement powers: it has to rely on military forces on the ground, thus creating a link with NATO leaders and Western armed forces, although this needs not aﬀect its judiciary independence. It also relies on the good will of governments, a rare oﬀering on their part. The Security Council’s resolution which established the ICTY included as one of its objectives, ‘contributing to the restoration and maintenance of peace’, to which observers have added ‘to provide a sound foundation for civil peace and reconciliation’. This is an over-ambitious goal for the Tribunal, whose basic mandate is to prosecute and judge, not to assume a political peace-keeping or peace-making role. A former judge and President of the ICTY, Gabrielle Kirk McDonald, said in a recent Conference held at the University of Texas School of Law:2 ... [I] believe the eﬀect on the Former Yugoslovia has been profound. First, the ICTY has removed a ‘criminal element’ from the region – political and military leaders, the rank and ﬁle and common criminals – thereby helping to lay the foundation for peace. Second, it has provided a forum for the suﬀering of victims to be recorded

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and revealed and it has contributed to the development of a historical record of what transpired. Third, it has demonstrated that fair trials can be conducted in war crimes prosecutions. Finally it is a model for substantive and procedural law to be applied by the local courts.

A Public Opinion Survey on ‘Attitudes towards the Hague Tribunal’ was carried out by the Belgrade Center for Human Rights in July 2003.3 The Survey showed a low level of the sampled people being informed about the Tribunal. 59 per cent answered that Serbia should not cooperate in extradition of accused Serbs. The impartiality of the Tribunal concerning accused Serbs was distrusted by 69 per cent. 69 per cent were little or not informed about the trials, did not watch the trials on television. Part of these negative attitudes may be attributed to the open state propaganda against the Tribunal by Serb politicians, by opposition from known international jurists, by nationalism and patriotism, a feeling that the Tribunal is prosecuting those defeated in war, that there is an international conspiracy against the Serbs, and only Serbs are on trial. Besides other factors, the physical distance of the Hague Tribunal from the Former Yugoslavia is another reason for a lack of interest and appreciation of its work. Additionally, the complex and slow operations of the international tribunal with its stress on due process, its working languages,4 its procedural exigencies foreign to those of the area, have added distance to those for whom the Tribunal is supposed to work. Clearly, the Tribunal has not been able to break this wall of resistance, fallacies and misunderstandings, which depend to a large extent on the evolution of attitude on the part of the current Yugoslav government. The government’s cooperation with the Tribunal should not be only triggered by US ﬁnancial threats and blackmail: it should be able to assess more objectively what the Serbs have done during the wars, the responsibility of their leaders, the fact that Croats and Bosnian Muslims are also being judged, and that the Court’s procedures are fair. The Tribunal should also improve its information and communications programmes to the populations of the Former Yugoslavia. Reconciliation between Serbs, Croats and Bosnian Muslims is far from being achieved; Albanian Kosovans reject any cooperation with the Serbs in Kosovo: it will take several generations and interchanges within the various countries or territories, still in a slow transition to democracy, to come closer to this aim. How long did it take for the Germans and the French to forget their three wars and become allies and (almost) friends? This slow evolution was made possible, not by Nuremberg, but by the vision and political will of French and German leaders and the creation of European communities, where former adversaries could work together. The International Criminal Tribunal for Rwanda (ICTR)

This Tribunal has suﬀered from all the problems of the ICTY such as legitimacy of its creation by the Security Council, its geographical distance from the country of the genocide, its even slower start in a poor African country far from the

Conclusion

legal and judicial resources of North America and Europe, to which was added a continuing conﬂict with the Tutsi-dominated government of Rwanda: the government wanted the Tribunal to be in Rwanda, and has objected to the rejection of the death penalty by its Statute, which causes an unacceptable lack of equity between those senior organizers of the genocide, who may be punished by life imprisonment or jail for a set term, while lower-level perpetrators may be condemned to death by Rwandan tribunals. The present government wishes the Tribunal to limit its prosecutions to the genocidal Hutu leaders, and not embark on prosecutions of Tutsi leaders who may have committed war crimes and crimes against humanity before, during and after the genocide. On the positive side, the Tribunal has obtained custody of and is judging all the ministers of the Rwandan government responsible for the genocide, including its Prime Minister. It recorded the ﬁrst guilty plea on a count of genocide and included sexual violence as an act of genocide. While the ICTR is judging only senior leaders, the Rwandan government remains with the awsome responsibility of dealing with mass murders by hundreds of thousands of perpetrators through a weak national justice system and an untested traditional gacaca system. Can the government, at the same time, run the country, force reconciliation and carry out a degree of judicial retribution? Its involvement in foreign wars, whatever their justiﬁcation, appears like an unfortunate and criticized distraction from its basic reconstruction mandate. What is the domestic impact of the Tribunal? According to a survey conducted in February 2002 by the Human Rights Center of the University of California, Berkeley,5 the level of public knowledge about the Tribunal and its functioning is extraordinarily low: only 0.7 per cent of the 209 respondents claimed to be well informed of the Tribunal, and 0.5 per cent claimed to be informed. In spite of the low level of information about the ICTR, the general public attitude towards it in both interviews and the survey was mildly positive. While the research showed that the Rwandan public is not hostile to the Tribunal, they see it as making only a limited contribution towards reconciliation within Rwanda. Longman reports6 Our interviews indicate that Rwandans generally believe that the ICTR exists for two purposes: to try individuals who are outside the borders of Rwanda and therefore inaccessible to the Rwandan legal system, and for the international community to take account of what happened in Rwanda. ... ... 63 per cent of survey repondents agreed or strongly agreed with the statement: ‘The Arusha Tribunal is there above all to hide the shame of foreigners’.

In other words, for the Rwandan population, according to this survey, the guilt for the genocide is not only a responsibility of the Rwandans, it is also, or mainly, a responsibility of the ‘foreigners’. This unexpected ﬁnding seems to reinforce the charge that the very creation of the Tribunal was a response by the foreigners, or the ‘international commu-

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nity’ linked to their guilt for their inaction in preventing or stopping the genocide. However, the genocide of Rwandans was committed by Rwandans, not by ‘foreigners’. Secondly, the ICTR is playing an essential role in judging the main organizers and other supporters of the genocide. The mixed national-international tribunals

Like the ICTY and the ICTR, these tribunals are ad hoc temporary courts. Unlike the ICTY and the ICTR, they include national judges with international judges, and national prosecutors with international prosecutors. This innovation is meant to bring justice nearer the population of the country where grave violations of international humanitarian law were committed, while ensuring that such trials are conducted in accordance with the same exacting standards of due process complied with by the international tribunals composed only of international judges. Another, less compelling argument for their creation, is to achieve such justice at lower costs, and possibly within a quicker time-span. It is yet too early to give a fair assessment of the performance and value of the Special Court for Sierra Leone and the East Timor Dili Court. There is serious doubt that the Cambodian tribunal, with only a minority of international judges, will be able and willing to assert its independence from the Cambodian government’s and to carry out fair justice. The International Criminal Court

The creation of the ICC brought momentum to the drive towards more accountability of those mainly responsible for grave violations of international humanitarian law, mass crimes, genocide, war crimes, crimes against humanity. The unexpected adoption of the Rome Statute in 998, its entry into force in 2002, the number of ratiﬁcations, and the building up of its structure, the Court and the Assembly of States Parties, have shown that, based on the Nuremberg precedent and the functioning of the temporary ad hoc ICTY and ICTR, it was timely, necessary and possible, to set up a permanent international criminal court. In the realm of international justice, the creation of the ICC is as important as the earlier creation of the Permanent Court of International Justice in 92, followed by the International Court of Justice in 945. However, international judicial institutions created in a world of sovereign states are faced with formidable obstacles: the states’ consent remains necessary for the ICJ’s jurisdiction in disputes between states. It took many years before the ICJ’s docket became ‘congested’. Only one permanent member of the UN Security Council (the UK) has recognized the compulsory jurisdiction of the ICJ. Dealing with individual criminal cases, and not with states’ civil cases, the ICC faces even higher hurdles before it acquires international legitimacy and general acceptance. Only two permanent members of the Security Council (France and the UK) have ratiﬁed the Rome Statute and provide support to the Court,

Conclusion

separately or within the European Union. The US is waging a resolute campaign against the ICC, in order to provide immunity to its nationals from ICC prosecution, even though the Rome Statute gives primacy to national courts (the complementarity principle), investigations and prosecutions are subject to many requirements, with a role for the Security Council, and the Court has limited powers: it will rely on voluntary assistance from countries as it has no enforcement powers in obtaining custody or compelling witnesses to appear. Besides the US opposition, the ICC, as the other international criminal tribunals, will work in a political environment: as recalled by Maogoto,7 ... tribunals are subject to the will and power of states that seek to safeguard or advance their supreme decision-making capability. These tribunals have to conduct their business among states, and they cannot exist without them. The international system does not act in a vacuum; nor does it operate outside realpolitik. Its eﬀectiveness all too often depends on the quality of world politics and the degree of community among members.

The Coalition for the ICC has cautiously and rightly recalled that the Rome Statute and the ICC oﬀer the greatest potential advance in international justice in the 20th century.8 The term ‘potential’ refers to whether governments will actually implement the extraordinary new system of international justice envisioned in the Rome Statute. This term also refers to whether the leaders of the ICC will have the wisdom, courage and leadership to create what must be a new kind of international organization for the 2st century. Of course, ‘potential’ also refers to whether the United States’ political and military eﬀorts to undermine the ICC will succeed in sabotaging the Court’s aim of justice and deterrence; or whether the US will return to its long-standing support for the rule of law.

The credibility and eﬀectiveness of the ICC will ﬁrst depend on the quality, competence, independence and wisdom of its judges and Prosecutor, and on the sound management of its Registry: these oﬃcials are fully conscious of the challenges ahead and of their own responsibilities. It will also depend on the quality and pertinence of debates and decisions taken by the Assembly of States Parties, including adequate ﬁnancing of the Court, on the support of States Parties and other friendly states, parliaments, legal specialists and associations, and NGOs. The viability of the Court will ﬁnally depend on the eﬀective cooperation and assistance given by states’ authorities in providing access and security to the Court’s investigators, in the protection of witnesses, gathering of evidence and arrest of suspects. The Statute of the Court is the result of political compromises and has ﬂaws, albeit not those proclaimed by the US. Many questions may be raised: – will the Court retain its independence, when faced with strong political pressures from governments?

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– will the Court only indict and judge alleged criminals from developing countries, another type of ‘victors’ justice, on the grounds that those criminals are only found in developing countries? – what will be the relationship between the Court and the Security Council in view of the opposition to the Court of the US, a permanent member of the Council? – the absence of the US is a serious handicap for the Court. Will there be a progressive and desirable rapprochement in the future? – will the Court consider the possible dilemma between peace negotiations, including the grant of amnesties vs. justice, when indictments and prosecutions may renew violence? – will the existence and action of the Court inﬂuence the behaviour of leaders, and possibly prevent new mass crimes? To perform eﬀectively, international criminal justice requires the following elements: – clear legal concepts; – functioning structure; – political consensus and will to make it work; – and political legitimacy in the eyes of governments and peoples. The ﬁrst two requirements are met, the last two are to be demonstrated. The carefully preserved national sovereignty of states remains as the major obstacle to international justice. The ICC supporters should not entertain excessive or unrealistic expectations. The Court will not solve all the problems of the world nor eradicate ‘evil’: no more than the ICJ, it will not prevent war, maintain peace or suppress internal or external armed conﬂicts. No more than the other international criminal tribunals, the ICC cannot be expected to achieve reconciliation among divided countries or between countries long at war. The ICC cannot act as a Truth and Reconciliation Commission, bodies which may remain necessary in some circumstances. The ICC will not replace able and willing national justice. It is hoped that its creation and activities will reinforce national criminal law and justice. The ICC’s primary role is to bring to justice those considered most responsible for atrocities or mass violence and to determine appropriate reparations to victims. Its more utopian and secondary role in preventing further crimes will take many prosecutions and judgments, and many years before it takes hold. It seems that the ICC has started its challenging work with prudence and realism.The test of its international judicial viability will only come later, possibly after a few decades. The hope and expectation is that the ICC is now assuming its proper and necessary place within the overall national/international criminal justice system, as a key element in the long human struggle aimed at strengthening the rule of law, eroding the impunity of criminal leaders and giving some relief to the victims.

Conclusion

Notes 

2

3 4 5

6 7 8

Art. 7 of the Nuremberg Charter states: ‘The oﬃcial position of defendants, whether as Heads of State or responsible oﬃcials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment’. Judge McDonald served the ICTY from 993 to 200. She previously worked as a judge in a US District Court in Texas. Her views were given in an individual capacity during an Interdisciplinary Conference at the University of Texas School of Law, Austin, Texas, November 6-7, 2003 on ‘International War Crimes Trials: Making a Diﬀerence?’ – Proceedings edited by Steven R. Ratner and James L. Bischoﬀ, University of Texas School of Law, 2004. Extract of her views on p. 7. Further references to this Conference are entitled ‘Texas Conference’. These results were presented to the Texas Conference by Igor Bandovic, Project Coordinator at the Belgrade Centre for Human Rights – see Proceedings, pp. 90-00. According to Art. 33 of its Statute, the Tribunal’s working languages are English and French. The survey was part of a three year, multidisciplinary study of social reconstruction in post-genocide Rwanda, See ‘The Domestic Impact of the International Criminal Tribunal for Rwanda’ by Timothy Longman in ‘Texas Conference’, pp. 33-47. Ibid, p. 39. J. N. Maogoto, War Crimes and Realpolitik, International Justice from World War I to the 2st Century (Lynne Rienner Publ., Boulder/London, 2004), p. 240. Insight on the International Criminal Court, Newsletter of the NGO Coalition for the ICC, Issue 2, September 2004.

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Hersh, S. M., ‘Torture at Abu Ghraib’, The New Yorker, 0 May 2004. Kamto, M., ‘Les interactions des jurisprudences internationales et des jurisprudences nationales’ , in La juridictionnalisation du droit international, Société française pour le droit international, Colloque de Lille (Pedone, Paris, 2003). Kissinger, H., ‘The Pitfalls of Universal Jurisdiction’, Foreign Aﬀairs, Vol. 80, No. 4, July/ August 200. Lee, R. S. (Ed.), UNITAR, The International Criminal Court, The Making of the Rome Statute: Issues, Negotiations, Results (Kluwer Law International, The Hague/London/ Boston/New York,999). Llopis, A. P., La compétence universelle en matière de crimes contre l’humanité (Bruylant, Brussels, 2003). Mackinnon, C. A., ‘Remedies for War Crimes at the National Level’, The Journal of the International Institute, University of Michigan, Vol. 6, No. , October 997. McDonald, A., ‘Sierra Leone’s shoestring Special Court’, International Review of the Red Cross, March 2002, Vol. 84, No. 845. Magnarella, P. J., Justice in Africa, Rwanda’s Genocide, Its Courts, and the UN Criminal Tribunal (Ashgate, Aldershot, UK, 2000). Maogoto, J.N., War Crimes and Realpolitik, International Justice from World War I to the 2st Century (Lynne Rienner Publ., Boulder/London, 2004). Mayerfeld. J., ‘Who Shall Be Judge?: The United States, The International Criminal Court, and the Global Enforcement of Human Rights’, in Human Rights Quarterly 25 (2003) 93.29. Mundis, D. A., ‘The Assembly of States Parties and the Institutional Framework of the International Criminal Court’, The American Journal of International Law, Vol. 97: No. , 2003. Mushikiwabo, L, ‘Remarks of Louise Mushikiwabo’, International War Crimes Trials: Making a Diﬀerence?’, Proceedings of an International Conference held at the University of Texas School of Law, November 6-7, 2003, Steven R. Tatner and James L. Bischoﬀ, Editors, Austin Texas. Naqvi, Y. ‘Doubtful prisoner-of-war status’ in International Review of the Red Cross, September 2002, Vol. 84, No. 847. Narrett, N., ‘Holding individual leaders responsible for violations of customary international law: the US bombardment of Cambodia and Laos’, in The Columbia Human Rights Law Review 32:429 (200). Orizio, R. , Talk Of The Devil (Secker & Warburg, London, 2002). Popovski, V., The International Criminal Court: A Synthesis of Retributive and Restorative Justice’, International Relations, vol. XV, no. 3, December 2000. Scharf, M. P., Balkan Justice, the Story Behind the First International War crimes Trial Since Nuremberg, Carolina Academic Press (Durham, North Carolina, USA), 997.

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239

INDEX

Abidjan Accord, 4 Ademi, Rahim, 8 Afghanistan, 25, 26, 32, 34, 54 African Rights, 07 African Union, 94 Al-Abdullah, Rania, 72 Aleksovski Case, 29 Alfonsin, Raul, 20 Al Hussein, Zeid Rafad Zeid, 63 Akayesu, J.P., 0, 03, 09 Algeria, 23, 24, 84 Alien Tort Claims Act (ATCA), 57-60 Allende, Salvador, 9 Amin Dada, , 5-7, 39 Amnesty, 2, 9, 4, 8, 20, 22, 23, 39, 63, 69, 24-25, 28, 39, 84, 226, 234, Amnesty International, 39, 45, 53, 62, 63, 99, 5, 39, 48, 89, 98, 203 Anglican Church, 95 Angola, 82 Annan, Koﬁ, 7, 95, 5, 33, 48, 83, 84, 97, 98 Apartheid, 4, 5, 52 Arafat, Yasser, 54 Arbour, Louise, 77, 96, 00, 0, 28 Argentina, 2, 20, 2, 55, 56, 62, 63, 7, 97, 202 Arrest Warrant (Democratic Republic of the Congo v. Belgium), 28 Ashcroft, John, 30 Astiz, Alfredo, 2, 56 Aussaresse, Paul, 23 Australia, 30, 8, 9, 92 Austria, 50, 75, 76, 5 Aylwin, Patricio, 9

Bagilishema, I., 02 Bagosora, Theoneste, 94, 00, 02, 04 Banovic, Predrag, 80-8 Barayagwiza, J.B., 0, 03 Bavaro Declaration, 87 Belgium, 3, 49, 50, 53-55, 63, 95, 72, 98, 28-29 Bellamy, Carol, 84-85 Bemba, J.P., 76 Bénin, 05, 99 Benito, G. Odio, 7 Bensouda, Fatou, 73 Bicamumpaka, J., 02 Bielsa, Rafael, 202 Bizimungu, C., 02 Bizimungu, Pasteur, 97 Blair, Tony, 54 Blaskic, Tihomir, 8 Bloomﬁeld, Lincoln, 93 Bobetko, General, 85 Bockarie, Sam, 20 Bokassa, Jean-Bedel, 4-5 Bolivia, 20 Bosnia, 7, 72, 77, 84, 3, 84, 23, 25, 230 Bozizé, François, 76 Brammertz, Serge, 72, 75 Brazil, 20, 99 Bulgaria, 86 Bush, George W., 26, 30, 32, 54, 2, 99 Calley, William, 24-25 Cambodia, , 6, 4, 29-39, 4, 42, 53, 204-205, 232 Agreement between the United Nations and -, 34-38

Index

242

Canada, 50, 53, 56-57, 77, 78, 97, 20, 7, 8, 82, 89, 96, 97 Canicoba Corral, Rodolfo, 2 Carlsson Report, 94-95 Carribean Community (CARICOM), 87 Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (BosniaHerzegovina v. Yugoslavia), 5, 25 Case concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 23 Castro, Fidel, 54, 55 Cathala, Bruno, 7 Catholic Church, 95 Cavallo, Ricardo Miguel, 2, 55-56 Celibici Case, 22, 26 Cermak, Ivan, 85 Certain Criminal Proceedings in France (Republic of the Congo v. France), 60 Central African Republic, 4, 73, 75-76 Chad, 54, 55 Chechnya, , 202-203 Cheney, Dick, 30 Cheyre, Emilio, 20 Child recruitment, 25-26 Chile, 9, 20-22, 47, 53-55, 58, 62 China, 8, 7, 72, 80, 86, 30, 38, 78, 47, 52, 8, 85, 90, 9, 98, 99, 204, Church groups, 89 Clark, Wesley, 83 Clinton, Bill, 9, 92 Condor Plan, 20, 56 Congo, Democratic Republic of -, 7, 49, 60, 97, 73, 74, 28, 29 Contreras, Manuel, 20 Conventions Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 52, 53, 204, 225 American – on Human Rights, 5 European – for the Protection of Human Rights and Fundamental Freedoms, 5 Geneva – and Protocols, 2, 4, 9, 5, 24, 26, 27, 28, 29, 3, 36, 40, 48, 49, 53, 7, 72, 73, 79, 8,08, 7-8, 36, 5, 53, 57, 60, 88, 89, 20, 204, 225

International – on the Suppression and Punishment of the Crime of Apartheid, 4, 5, 52 On the Prevention and Punishment of the Crime of Genocide, 4, 5, 50-52, 73, 33, 36, 5, 56, 204, 25, 225 On the Rights of the Child, 204 The Hague -, 2, 4, 73, 53 United Nations – on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 2, 23, 49 Vienna – on the Law of Treaties, 94, 204-205 Corell, Hans, 98 Costa Rica, 7-72 Council of Europe, 30, 77, 87, 93-94, 97, 203 Crane, David, 20 Crime of aggression, 4, 36, 46, 7, 52, 56, 63-64, 72, 74, 96, 227, 228 Crime of rape, 8, 25, 49, 58, 7, 72, 87, 03, 04, 09, 2, 39, 56, 74, 75 Crimes against humanity, , 2, 3, 4, 5, 6, 7, 8, 4, 5, 6, 8, 22, 23,37, 45, 46, 47, 49, 50, 53, 54, 56, 58, 60, 70, 7, 73, 79, 80, 8, 82, 84, 87, 95, 0, 02, 03, 04, 06, 5, 6, 7, 20, 2, 22, 24, 28, 3, 32, 36, 39, 40, 56, 57, 74, 75, 84, 85, 200, 20, 202-203, 204, 205, 24, 226, 227, 228, 232 Croatia, 7, 78, 82, 83, 85, 86, 3, 229, 230 Cuba, 54, 55 Cunningham, James, 96 Damiri, Adam, 8 Declaration of Santa Cruz de la Sierra, 87 De Gaulle, Charles, 23 De la Rua, Fernando, 56 Del Ponte, Carla, 74, 77, 86, 96, 97, 0 De Mello, Sergio, 85 Demjanjuk Case, 47 Denmark, 89 Destexhe, Alain, 98 De Vries, Gijs, 86 Dinka, Berhanu, 4 Djindjic, Zoran, 82 Donnedieu de Vabres, Henri, 8-9 Duch, 38

Index Dumas, Roland, 72 East Timor, 2, 6, 7-8, 4, 39-42, 92, 96, 232 Economic Community of West African States (ECOWAS), 4, 94 Military Observer Group (ECOMOG), 4, 5 Egypt, 92 Eichmann Case, 46-47, 83 El Salvador, 20 Estonia, 69 Ethiopia, 5, 6 European Court of Human Rights, 39, 203 European Parliament, 86 European Union, 7, 39, 83, 86, 89, 85-86, 87, 93, 94, 203, 204, 205, 233 Everett, R.O., 200 Filartiga v. Pena-Irala, 57 Finland, 75, 76 Fleischer, Ari, 99 Ford, Gerald, 7 Fox, Vicente, 22 France, 2, 3, 9, 5, 22-24, 3, 39, 40, 46, 53, 60-6, 7, 72, 74, 86, 87, 93, 95, 05, 29, 52, 57, 7, 72, 73, 8, 85, 89, 96, 97, 99, 20, 204, 2, 230, 232 Franks, Tommy, 54 Fujimori, Alberto, 55 Furundzija Case, 28 Gacaca courts, 06-08, 23 Gahima, Gerald, 98 Galic, Stanislas, 8 Gambia, 97, 73 Garzon, Baltasar, 9, 2, 39, 55, 56, 63 Gbagbo, Laurent, 54 Genocide, , 5, 6, 7, 4, 6, 8, 2, 23, 37, 43, 45, 47, 50-52, 54, 55, 56, 57, 58, 60, 7, 73, 79, 80, 8, 82, 84, 87, 94-0, 5, 2939, 4, 53, 56, 74, 84, 88, 200, 20, 24, 25, 225, 226, 230, 23, 232, Germany, 3, 4, 22, 46, 50, 53, 70, 7, 75, 76, 73, 8, 82, 85, 96, 97, 99, 227-228, 230 Gersony, Robert, 96 Ghana, 27, 7 Giscard d’Estaing, Valéry, 23

243

Goldstone, Richard, 77, 96, 00, 0, 6, 8, 23 Gonzales, Alberto, 32 Gotovina, Ante, 8, 85 Grenada, 205 Guantanamo, 5, 25-36 Guatemala, 8, 2, 55 Gueï, Robert, 54 Guillaume, Gilbert, 23, 220, 22 Guinea, 4, 94 Gusmao, Xanana, 4 Guzman, Juan, 9 Habyarimana, Juvénal, 93, 94 Habré, Hissène, 3, 54, 55 Hamdi Case, 33-34 Hassan II, 55 Helms, Jesse, 9 Holthuis, Hans, 74 Human Rights regime, 5 Human Rights Watch, 5, 2, 74, 75, 89, 94-95 Hun Sen, 3-34, 38, 4 Hussein, Saddam, 2, 5, 36-38, 54, 3, 200 Ieng Sary, 30, 3, 39 Imanishimwe, S., 02 India, 52, 89 Indochina, 23 Indonesia, 5, 7, 8, 39, 40, 42, 226 International Bar Association, 89 International Center for Transitional Justice, 28 International Commission of Jurists, 89 International Committee of the Red Cross (ICRC), 7, 27-28, 30, 3, 32, 53, 80, 5, 82-83, 88-89, 202 International Court of Justice (ICJ), 3, 8, 9, 49, 50-52, 60, 5, 54, 65, 205, 2-223, 226, 227, 232 International Covenant of Civil and Political Rights, 5, 3, 5, 37, 59, 204 International Criminal Court (ICC), 4, 7, 8, 3, 37, 47, 54, 55, 6, 63, 69, 87, 89, 0, 3, 25, 26, 27, 28, 36, 43, 47-80, 8-209, 22, 22, 228, 232-234 Agreement on the Privileges and Immunities, 67-69, 83 Assembly of States Parties, 55, 6, 63-73, 83, 84, 90, 232

Index

244

Preparatory Commission, 62-63 Ratiﬁcation status, 48-50 Relationship Agreement with the United Nations, 64-67 Rome Statute, 53-62 International Criminal Tribunal for Rwanda (ICTR), 4, 5, 6, 3, 8, 47, 49, 58, 59, 69, 70, 7, 74, 77, 93-2, 3, 6, 820, 27, 28, 42, 53, 54, 58, 59, 60, 6, 62, 66, 67, 20, 204, 22, 24, 27, 28, 22, 228, 229, 230-232 International Criminal Tribunal for the Former Yugoslavia (ICTY), 4, 5, 6, 3, 8, 47, 49, 58,69-9, 93, 95-97, 99, 00, 08-0, 3, 9, 20, 27, 28, 42, 53, 54, 58, 59, 60, 6, 62, 66, 67, 77, 20, 204, 22-22, 228, 229, 230, 232 International Crisis Group (ICG), 00 International Federation of Human Rights Leagues (FIDH), 23, 39, 5, 75, 76, 89 International Law Commission (ILC), 69, 5, 52, 65, 228 Inter-Parliamentary Union (IPU), 86 Iran, 54, 97 Iraq, , 36-38, 54, 58, 3, 47, 85, 9, 98, 205 Israel, 50, 54, 47, 9, 92 Italy, 53, 75, 76, 89 Ivanov, Igor, 202 Ivory Coast, 54, 94

Kang Kek Ieu, 32 Karadzic, Radovan, 6, 58, 229 Karemera, E., 03 Kayishema, C., 0 Kerrey, Bob, 25 Kerry, John, 33 Khieu Samphan, 3, 38 Kim Jong-Il, 5 Kirchner, Nestor, 2, 2 56 Kirsch, Philippe, 7, 76, 77, 82 Kissinger, Henry A., 7, 56, 6-62, 205 Klein, Jacques, 85 Korea, Republic of -, 92 Koroma. J.P., 20 Kosovo, 6, 7, 75, 82, 83, 88, 96, 230 Kostunica, Vojislav, 82 Krajisnik, Momcilo, 79 Krstic, Rasdislav, 8, 84 Kuenyehia, Akua, 7 Kuwait, 33

Jallow, Hassan Bubacar, 97 Japan, 3, 4, 53, 70, 82, 84, 92, 227-228 Joinet Report, 3 Jokic, Miodrag, 8 Jorda, Claude, 74 Jordan, 72, 97

Macedonia, 75 Madagascar, 23 Mali, 05 Markac, Mladen, 85 Massera, Emilio, 55 Matuta, Abel, 55 Mauretania, 54, 60 Mazowiecki, Tadeusz, 72, 72 McDonald, G.K., 229-230 Megawati, Sukarnoputri, 8 Menem, Carlos, 20, 55 Mengistu, Haile Mariam, 5, 6, 39 Mercosur, 87 Meron, Theodor, 74, 86 Mexico, 2, 22, 50, 55, 56, 82, 97 Milosevic, Slobovan, 4, 82-84, 86, 88, 200, 229 Milutinovic, Milan, 76, 8

Kabbah, Alhaji Dr Ahmed Tejan, 4 Kabiligi, G., 02, 04 Kadic v. Karadzic, 58-59 Kagame, Paul, 98, 0, 77 Kajelijeli, J., 03 Kalinda &Others, 60 Kallon, Morris, 20, 24 Kama, Laity, 0 Kamara, B.B., 24 Kambanda, Jean, 6, 94, 0,04, 08, 05 Kamuhanda, J. de Dieu, 03

Laos, 205 Lagos, Ricardo, 9 Leigh, Monroe, 20 Liberia, 6, 4, 6, 2, 25, 28, 85, 94, 97, 98 Libya, 47, 9 Liechtenstein, 69, 83 Liu Daqun, 80 Lomé Peace Agreement, 5, 24, 26 Lon Nol, 29

Index Miskine, Abdoulaye, 76 Mitterand, François, 23, 86 Mladic, Ratko, 6, 72, 83, 86, 229 Moreno-Ocampo, Luis, 7, 7, 73, 74 Mose, Erik, 02 Moynier, Gustave, 5 Mugabe, Robert, 6 Mugenzi, J., 02 Mugiraneza, P. 02 Muna, Bernard, 98 Munyeshyaka, W., 60 Musema, A. 02 Museveni, Yoweri, 73 Mushikiwabo, Louise, 58 My Lai, 24-25 Nahimana, F., 03, 04 Netherlands, 50, 74. 20, 23, 7, 76, 73, 82, 86, 89, 97 New Zealand, 92 Ngeze, H., 03 Ngirumpatse, M., 03 Nigeria, 2, 23, 27, 97 Nikolic, Momir, 80, 84 Niyitegeka, E., 02 Non-governmental organizations (NGOs), 5, 7, 26, 39, 40, 94, 07, 38, 52, 53, 62, 73, 74, 75, 78, 8, 89, 90, 92 – Coalition for the International Criminal Court, 54, 72, 8, 89, 90, 94, 98, 233 Norman, Sam Hinga, 20, 23, 25-27 North Atlantic Treaty Organization (NATO), 54, 7, 82, 83, 85, 86, 87, 88, 77, 92, 205, 229 North Korea, 5 Norway, 75, 76, 52 Nsengiyumva, A., 02, 04 Ntabakuze, A., 02, 04 Ntakirutimana, G., 02 Ntariyamira, Cyprien, 93 Nuon Chea, 3 Nuremberg Military Tribunal, 3, 4, 5, 6, 9, 23, 37, 46, 49, 69-7, 73, 83, 86, 04, 0, 48, 57, 227, 228, 229, 230, 232 Nzirorera, J., 03 Obasango, Olusegun, 2 Oboto, Milton, 6 Obrenovic, Dragan, 80, 84

245

Ogata, Sadako, 84 Organization for Security and Cooperation in Europe (OSCE), 39 Organization of American States (OAS), 29, 87, 88 – Report, 95 Ould Dah, Ely, 60 Owen, David, 83 Pace, William, 98 Padilla Case, 34, 35 Pakistan, 72 Palestine, 54 Panama, 205 Papon, Maurice, 22-23 Paraguay, 20, 50 Parliamentarians for Global Action (PGA), 86, 98 Patassé, Ange-Félix, 76 Patten, Chris, 86 Permanent Court of Arbitration, 226 Permanent Court of International Justice, 226, 232 Pillay. Navanethem, 98, 0 Pinochet, Augusto, 9, 20, 39, 47, 53-55, 6, 62, 63 Plavcic, Biljana, 79-80, 8, 84 Pleuger, Gunter, 85 Poland, 72, 72 Pol Pot, 29-3, 84 Pompidou, Georges, 22 Powell, Colin, 54, 93, 94 Princeton Principles, 63 Prosper, Pierre-Richard, 27, 77, 92 Qatar, 47, 9 Rafsanjani 54 Rajic, Ivica, 85 Ranariddh, Norodom, 3, 34 Robertson, Geoﬀrey, 20, 22-24, 26, 28, 42-43 Romania, 86, 99 Roosevelt, Franklin D., 3 Roth, Kenneth, 94 Ruggiu, G.H.J., 02, 04 Rumsfeld, Donald, 26, 27, 29, 32, 54 Russia, , 4, 8, 6, 46, 38, 53, 72, 86, 30, 78, 47, 52, 8, 85, 90, 202-203, 204 Rutaganda, G.A.N., 0

Index

246

Ruzindana, O., 0 Rwanda, , 54, 60, 69, 70, 93-3, 53, 77, 84, 28, 229-232 Radio TV des Mille Collines (RTLM), 03, 04 Rally for the Return of Refugees and Democracy in Rwanda (RDR), 07 Rwandan Patriotic Front (RPF), 93, 96, 00, 07-0 Rwamakuba, A., 03 Sanchez, O. Arias, 72 Sané, Pierre, 48 Sankoh, Foday, 4-6, 20, 2 Saudi Arabia, 7 Scheﬀer, David, 9 Schieder, Peter, 87 Schwebel, S.M., 220, 22 Semanza, L., 02 Senegal, 50 Serushago, O. 0 Sesay, Issa, 20-22 Seselj, Vojislav, 76, 8-82, 83, 84 Shahabudden, M., 22 Sharon, Ariel, 54 Sierra Leone, 4-29, 4, 94 Armed Forces Revolutionary Council (AFRC), 2 Civil Defence Forces (CDF), 2 Revolutionary United Front (RUF), 4, 5, 20-22, 24, 26 Special Court, 6, 49, 4-29, 204, 28, 232 Truth and Reconciliation Commisssion, 26, 29, 42 Sihanouk, Norodom, 29, 3 Singapore, 52 Slovenia, 7, 69 Somalia, 95 Sosa v. Alvarez, 59 South Africa, 77, 42, 72 Spain, 9, 2, 39, 47, 50, 55-56, 62, 75, 76 Sri Lanka, 52 Stabilization Force for Bosnia and Herzegovina (SFOR), 85 Stalin, I.V.D., , 3 Stanisic, Jolica, 76 Static, Milomir, 84 Straw, Jack, 9 Streicher, Julius, 04

Stroessner, Alfredo, 20 Strugar, Pavle, 8 St. Vincent and the Grenadines, 87 Suharto, 7 Swaziland, 05 Sweden, 75, 76 Switzerland, 74, 77, 82, 205 Syria, 96 Tadic Case, 87, 23, 24, 22 Taguba, Antonio M., 3 Taiwan, 92 Tanzania, 6 Ta Mok, 32, 33, 38 Taylor, Charles, 6, 39, 2, 22, 25, 27, 28 Terlingen, Yvonne, 98 Terry, Terrence, 22 Thailand, 30, 32, 89 Thayer, Nate, 30 Thurer, David, 89 Togo, 94 Tokyo Tribunal, 3, 4, 5, 37, 46, 69-7, 86, 0, 57, 227- 228, 229 Torture, , 6, 8, 20, 2, 24, 30, 3, 32, 45, 47, 48, 49, 52-53, 55, 56, 57, 58, 59, 60, 63, 7, 72, 32, 38, 39, 56, 74, 75, 203, 225, 227 Touvier, Paul, 22 Trinidad and Tobago, 52, 82, 87 Tudjman, Franjo, 85 Turkey, 52 Tutu, Desmond, 72 Uganda, , 7, 5, 7-8, 73-75, 77, 84 Lord’s Resistance Army (LRA), 73-74, 77 United Kingdom (UK), 6, 3, 39, 46, 47, 50, 53, 55, 63, 7, 78, 96, 6, 20, 23, 73, 8, 85, 204, 232 United Nations (UN), , 5, 6, 7, 8, 37, 39, 5, 6, 75, 80, 94, 97, 09, 4, 6, 7, 28, 30, 32, 34, 35, 38-4,47, 52, 54, 6, 62, 63, 64, 74, 8, 82, 85, 86, 22, 23, 27, 22, 226 – Assistance Mission for Rwanda (UNAMIR), 94, 95 – Charter, 5, 72, 88, 93, 6, 27, 5, 58, 59, 63, 65, 95, 96, 97, 2, 26, 228

Index – Children’s Fund (UNICEF), 75, 8485 – General Assembly, 74, 3, 33, 34, 5, 52, 62, 65, 66, 67, 82, 83, 84, 89, 23, 24, 26, 22 – High Commissioner for Human Rights , 72, 97, 85, 203 – High Commissioner for Refugees (UNHCR), 84 – Mission to Bosnia-Herzegovina (UNMIBH), 95 – Observer Mission in Sierra Leone (UNOMSIL), 4 – Ôﬃce of Internal Oversight Services (OIOS), 97, 99, 00 – Protection Force (UNPROFOR), 7 – Secretary-General, 20, 24, 26, 339, 4, 48, 62, 65, 66, 7, 72, 83, 94, 205 – Security Council, 69, 70, 72, 74, 77, 78, 87, 93-97, 08, 3-7, 22, 27, 33, 39, 4, 52, 53, 58, 59, 63, 65, 66, 8, 85, 87, 92, 95-99, 20, 22, 23, 24, 26, 228, 229, 230, 232, 233 – Transitional Administration in East Timor (UNTAET), 39-40 – Transitional Authority in Cambodia (UNTAC), 30 United States of America (USA), 2, 4, 7, 8, 9, 5, 7, 9, 24-40, 46, 47, 50, 53, 54, 576, 7, 72, 74, 77, 78, 8, 82, 83, 86, 87, 88, 94-96, 97, 3, 23, 38, 6, 20, 2, 29, 30, 33, 47, 52, 62, 64, 7, 73, 76, 78, 84, 85, 87, 88, 89, 90-202, 204, 2, 229, 230, 233, 234 American Service Members’ Protection Act (ASPA), 9-92 Bilateral Agreements, 92-95 Bush Administration, 2, 8, 35, 82, 47, 62, 205 Central Intelligence Agency (CIA), 7, 20 Military commissions, 29-30 Supreme Court, 32-36 Universal Declaration of Human Rights, 5 Universal jurisdiction, 2-3, 45-67 Union of Soviet Socialist Republics (USSR), see Russia Uruguay, 20

247

Veil, Simone, 72 Videla, Jorge, 20, 55 Vietnam, 2, 24, 29, 30 War Crimes, , 2, 3, 4, 5, 6, 7, 8, 9, 4, 6, 22, 23, 25, 37, 45, 46, 47, 48, 56, 57, 58, 60, 70, 7, 73, 8, 82, 84, 87, 88, 95, 5, 6, 7, 8, 20, 2, 24, 28, 32, 36, 5, 56, 57, 76, 84, 88, 200, 20, 205, 24, 226, 227, 228, 230, 232, Wiranto, General, 7, 8, 40, 4 World Federalist Movement, 89 Yemen, 47, 9 Yerodia, A. N., 50, 28 Yugoslavia, , 58, 69-9, 93, 97. 3, 205, 23, 28, 229, 230 Zaire, 84 Zimbabwe, 6