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Recent Developments In International Criminal Law:Trying To Stay Afloat Between Scylla And Charybdis

Published online by Cambridge University Press:  17 January 2008

Olivia Swaak-Goldman
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Abstract

An analysis of recent development in international criminal law shows the emergence of two countervailing trends: on the one hand a broadening trend, in that the various prosecutorial meansused to hold individuals accountable for violations of certain international crimes has expanded; and on the other hand a narrowing trend, in that the protection from prosecution afforded by international law to certain individuals, that once seemed to falter, has been reinstated.

Type
Shorter Articles, Comments, and Notes
Information
International & Comparative Law Quarterly , Volume 54 , Issue 3 , July 2005 , pp. 691 - 704
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

1 Non-prosecutorial forums, such as truth and reconciliation commissions (TRCs), are outside the scope of this contribution. For a discussion of the advantages and disadvantages of TRCs see Scharf, Michael P ‘The Case for a Permanent International Truth Commission’ (1997) 7 Duke J. Comp. & Int'l L 375Google Scholar. See also Landsman, Stephan ‘Alternative Responses to Serious Human Rights Abuses: of Prosecution and Truth Commissions’ (1996), 59 Aut Law & Contemp Probs 81.CrossRefGoogle Scholar

2 UN Doc A/CONF.183/9, 17 July 1998, as corrected. The ICC Statute entered into force on 1 July 2002, less than four years after it was adopted.Google Scholar

3 Art 17(1) of the ICC Statute, ibid Art 17.

4 As of 15 Mar 2005.Google Scholar

5 Art 15 of the ICC Statute, above n 2.Google Scholar

6 Art 5 of the ICC Statute, above n 2. The crime of aggression is not yet defined. In accordance with Art 5(2) of the ICC Statute, the ICC can only exercise jurisdiction over the crime of aggression upon the amendment of the Statute, which can happen at the earliest after the first Review Conference in 2009.Google Scholar

7 Art 12(2) of the ICC Statute, above n 2.Google Scholar

8 ibid; see also Art 13. On 31 Mar 2005 the Security Council referred its first case to the ICC—the situation in Darfur, Sudan, UN DOC S Res 1593 (2005).

9 ICC Statute, Art 12(3).Google Scholar

10 ibid Art 11. A State party can, however, agree to give the Court jurisdiction over events that occurred before it became a party, as far back as 1 July 2002. ICC Statute Arts 11(2) and 12(3).

11 ICC Statute Art 17.Google Scholar

12 UN Doc S Res 1422 (2002).Google Scholar

13 UN Doc S Res 1487 (2003).Google Scholar

14 UN Doc S Res 1497 (2003). The mandate for the Multinational Stabilization Force for Liberia (UNMIL) was extended on 17 Sept 2004 by Security Council Resolution 1561 (2004). The US did not seek to include a specific provision on immunity from ICC jurisdiction for its armed forces because it has a bilateral agreement with Liberia ensuring that Liberia will not surrender, inter alia, US nationals to the ICC. See Press Release SC/8187, 17 Sept 2004.Google Scholar

15 See American Servicemembers' Protection Act (ASPA) (26 July 2002), available at <http://www.state.gov/t/pm/rls/other/misc/23425.htm>. The ASPA terminates US military assistance to those countries (aside from those which are excepted) that do not sign a bilateral agreement. A current legislative proposal, the Nethercutt amendment, threatens to withdraw all US aid to countries that have ratified the ICC Statute but have not signed a bilateral agreement. At the time of writing this amendment had been approved by the House of Representatives but had not yet been considered by the Senate..+The+ASPA+terminates+US+military+assistance+to+those+countries+(aside+from+those+which+are+excepted)+that+do+not+sign+a+bilateral+agreement.+A+current+legislative+proposal,+the+Nethercutt+amendment,+threatens+to+withdraw+all+US+aid+to+countries+that+have+ratified+the+ICC+Statute+but+have+not+signed+a+bilateral+agreement.+At+the+time+of+writing+this+amendment+had+been+approved+by+the+House+of+Representatives+but+had+not+yet+been+considered+by+the+Senate.>Google Scholar

16 As of 18 May 2005. See <http://www.iccnow.org/documents/USandICC/BIAs.htm>.

17 On 23 June 2003 the ICC Prosecutor announced his decision to investigate grave crimes allegedly committed on the territory of the Democratic Republic of Congo (DRC) since 1 July 2002—the ICC' s first investigation. In Sept 2003 the Prosecutor informed the States Parties that he was ready to request authorization from the Pre-Trial Chamber to use his own powers to start an investigation, but that a referral and active support of the DRC would assist his work. In Nov 2003 the Government of the DRC welcomed the involvement of the ICC and on 3 Mar 2004 the DRC referred the situation in the country to the Court. ICC Office of the Prosecutor, Press Release 23 June 2004.

18 On 16 Dec 2003 Uganda referred the situation in the north of the country to the ICC and on 29 July 2004 the Prosecutor announced that he had opened an investigation into crimes against humanity and war crimes committed in that region since 1 July 2002. ICC Office of the Prosecutor, Press Release 23 June 2004 and 29 July 2004.Google Scholar

19 1983 Ybk of the United Nations 1325.Google Scholar

20 UN Doc S Res 808 (1993).Google Scholar

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22 See, eg, Art 29 of the ICTY Statute, above n 21, whereby States are required to cooperate with the ICTY.Google Scholar

23 Under Art 103 of the UN Charter, obligations under the Charter take precedence over obligations under any other international agreement. There are, however, limits to the obligation to cooperate, eg, with requests that jeopardize a State's national security. See Prosecutor v Tihomir Blaskic, Judgment of the Appeals Chamber on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, para 32. See also Rule 54bis of the ICTY's Rules of Procedure and Evidence. This issue is currently being litigated in the case Prosecutor v Milan Milutinovic, Dragoljub Ojdanic and Nikola Sainovic, in which counsel for General Ojdanic has requested NATO, NATO States, and other States to search their records for intelligence intercepts related to General Ojdanic. Prosecutor v Milan Milutinovic, Dragoljub Ojdanic and Nikola Sainovic, Case No. IT-99-37-PT, General Ojdanic's Application for Orders to NATO and States for Production of Information, (15 Nov 2002); Scheduling Order (22 Sept 2004); Decision on Application of Dragoljub Ojdanic for binding orders pursuant to Rule 54 bis (23 Mar 2005); and General Ojdanic's ex parte request to NATO and States Pursuant to Trial Chamber's Decision of 23 Mar 2005 (19 Apr 2005).Google Scholar

24 Concern about meeting international standards was one of the primary reasons why negotiations for the Cambodia Tribunal were so difficult, taking over five years to reach a conclusion. See Report of the Secretary-General, below n 33. See also Cambodia: Khmer Rouge Tribunal Must Meet International Standards, Human Rights Watch Press Release (12 Feb 2002).Google Scholar

25 For example, in 2001 the combined budgets of the ICTY and ICTR reached $798 million dollars, and by 2004 they had reached $2 billion dollars. Pierre-Richard Prosper, War Crimes in the 21st Century, Remarks at Pepperdine University, Malibu California (26 Oct 2004), available at <http://www.state.gOv/s/wci/rm/38309.htm>..>Google Scholar

26 See, eg Prosper, ibid, noting the US position that ‘the international practice should be to support sovereign states seeking justice domestically when it is feasible, so that the society takes ownership over the process and feels a part of the process’; Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (3 Aug 2004), UN Doc S/2004/616, finding that ‘Our main role is not to build international substitutes for National structures, but to help build domestic capacities’ (and the related Statement by the President of the Security Council, UN Doc S/PRST/2004/34, 6 Oct 2004); and UN Doc S Res 1503 (2003), ‘Noting that the strengthening of national judicial systems is crucially important to the rule of law in general and to the implementation of the ICTY and ICTR Completion Strategies in particular.’

27 Under their Completion Strategies, the ICTR and ICTY are committed to completing investigations by the end of 2004, all trial activities in the first instance by the end of 2008, and all of its work in 2010. See UN Doc S Res 1503 (2003) and 1534 (2004).Google Scholar

28 On the experience of mixed tribunals generally see Dickinson, Laura A ‘The Promise of Hybrid Courts’ (2003) 97 Am J Int'l L 295.CrossRefGoogle Scholar

29 The East Timor Tribunal (ETT) was originally established to be part of the UN-led transition Government, thus it is formally a part of the District Court of Dili. The ETT is comprised of two chambers: one English-speaking and the other Portuguese-speaking. Each Chamber has three judges, one Timorese and two international. The ETT has jurisdiction over all crimes that can be characterized as ‘serious’, including international crimes such as crimes against humanity, as well as common crimes such as murder, committed between 1 Jan and 25 Oct 1999. Appeals from ETT judgments are made to the Timorese Court of Appeals, the regular Court of Appeals, which consists of three Timorese judges. The UN is scheduled to leave East Timor on 30 May 2005. For information on the development of the ETT see United Nations Press Release SC/8172 (24 Aug 2004).Google Scholar

30 On 10 June 1999 the United Nations Security Council adopted resolution 1244 (1999) establishing the United Nations Interim Administration in Kosovo. Soon thereafter, in the summer of 1999, the United Nations Mission in Kosovo (UNMIK) requested assistance in managing the Kosovo judicial system. As a result, UN authorities promulgated a series of regulations allowing international judges to sit alongside national judges on existing local Kosovar courts and allowing international lawyers to work with domestic lawyers to prosecute and defend cases. The substantive law applied is a mixture of international and national law. For information about the establishment of the Court see UNMIK/REG/1999/5. See also Dickinson, above n 29 at 296 and Strohmeyer, Hansjörg, ‘Collapse and Reconstruction of a Judicial System: The United Nations Mission in Kosovo and East Timor’ (2001) 95 AJIL 46, 46CrossRefGoogle Scholar

31 On 10 Dec 2003 the Iraqi Governing Council adopted the Statute of the Iraqi Special Tribunal (1ST), providing the legal foundation and laying out the jurisdiction and basic structure of the IST. The IST will be the forum for charges of genocide, crimes against humanity and war crimes committed by Iraqi nationals or residents in Iraq between 1968 and 2003. The Statute permits, but does not require, the Governing Council to appoint non-Iraqis as judges. However, it does require that non-Iraqis be appointed to serve in advisory capacities or as observers. See generally <http://www.usip.org>. Trials are not expected to begin before 2005 and all of the judges appointed thus far are Iraqi..+Trials+are+not+expected+to+begin+before+2005+and+all+of+the+judges+appointed+thus+far+are+Iraqi.>Google Scholar

32 The Cambodia Tribunal (‘KRT’), created by means of the Agreement between the United Nations and the Royal Government of Cambodia concerning Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, was established to conduct trials of top Khmer Rouge leaders. The Agreement was reached in March 2003, but in order to come into force it needed to be approved by the UN General Assembly and the Cambodian Parliament. The General Assembly approved the Agreement on 13 May 2003 (see Press Release GA/10135). After long delays, the Cambodian Parliament ratified the Agreement on 4 Oct 2004 (see Financial Times, Cambodia Ratifies Deal on Khmer Rouge Trial, 4 Oct 2004). The KRT, although not yet in operation, is set up to be a national Cambodian court, in the form of Extraordinary Chambers of the Cambodian Court. There will be international as well as national judges, investigating judges and prosecutors, with Cambodians in the majority, and any decision will require a vote of a majority plus one. International lawyers will be entitled to assist Cambodian lawyers but can not represent client. The substantive law applied will be national Cambodian law, such as the crimes of homicide, torture and religious persecution, as supplemented by international law, including genocide, crimes against humanity and grave breaches of the Geneva Conventions. See Report of the Secretary-General on Khmer Rouge Trials, UN Doc A/57/769 (31 Mar 2003). Despite the recent ratification of the Agreement by the Cambodian Parliament, serious concerns about the funding of the KRT remain. See Associated Press, Cambodia's Prime Minister Rebukes Partners in Planned Genocide Tribunal, 16 Sept 2004.Google Scholar

33 Both of these difficulties were evident in the KRT. See Report of the Secretary-General on Khmer Rouge Trials (31 Mar 2003), above n 33. The UN Secretary-General has recognized the debilitating effect that funding problems can have on mixed tribunals and recommends that when UN-sponsored tribunals are established, they should include at least partial funding through assessed contributions. Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (3 Aug 2004), above n 27 at para 64(1).Google Scholar

34 The indictment and arrest warrant against Charles Taylor were originally subject to an order of non-disclosure but were made public on 12 June 2003. See First Annual Report of the President of the Special Court for Sierra Leone, available at <http://www.sc-sl.org>..>Google Scholar

35 UN Doc S Res 1478 (2003). See also UN Doc S Res 1508 (2003) (urging all States to cooperate fully with the Special Court).Google Scholar

36 International Court of Justice Press Release 2003/26 (5 Aug 2003).Google Scholar

37 ibid. Liberia also argued that: ‘The international arrest warrant…against the president Charles Ghankay Taylor, violates a fundamental principle of international law providing for immunity from criminal proceedings [in[ foreign criminal jurisdictions of an incumbent Head of State as recognized by the jurisprudence of the International Court of Justice.’

38 SCSL, Prosecutor v Charles Ghankay Taylor, Case No SCSL-2003-01-I, Decision on Immunity from Jurisdiction (31 May 2004).Google Scholar

39 This limitation also affects the other form of mixed tribunal—those fully integrated into the national legal system of a State—to the extent that suspects are located abroad. For example, the ETT is faced with a situation where the vast majority of high-level suspects are located outside of East Timor, despite their East Timorese nationality.

40 Princeton Principles, below n 55, at Principle 1.Google Scholar

41 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field (12 Aug 1949), 75 UNTS 31; Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (12 Aug 1949), 75 UNTS 85; Geneva Convention III Relative to the Treatment of Prisoners of War (12 Aug 1949), 75 UNTS 287; and Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (12 Aug 1949), 75 UNTS 171. See discussion below.Google Scholar

42 Convention on the Prevention and Punishment of the Crime of Genocide (9 Dec 1948), 78 UNTS 277.Google Scholar

43 See 42 ILM 884 (2003), translating excerpts of the 10 June 2003 decision of the Supreme Court of Mexico. The proceedings against Ricardo Cavallo were temporarily suspended by Spain's Audiencia Nacional, Criminal Chamber, on 29 Sept 2004, in order to determine whether there will be criminal proceedings for the same crimes in Argentina. American Society of International Law, International Law in Brief (2004). Recent civil claims based on universal jurisdiction include Tachiona v United States, 386 F.3d 205, 2004 US App LEXIS 20879 (2nd Cir, 6 Oct 2004) (US); and Wei Ye v Jiang Zemin, 383 F.3d 620, 2004 US App LEXIS 18944 (7th Cir., 8 Sept 2004). For an update of recent cases based on universal jurisdiction see <http://www.universaljurisdiction.info>..>Google Scholar

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45 See para 10 of the preamble, Arts 1 and 17 of the Statute, above n 2.Google Scholar

46 Some of these limitations were imposed by the courts. For example, in a case preceding the recent revision of the Netherlands' criminal code, the Supreme Court of the Netherlands limited the ability of the Dutch courts to convict someone for violations of the Convention Against Torture to cases in which there is a link with the Dutch judicial system, such as that the accused or the victim has the Dutch nationality or that the accused is located on the territory of the Netherlands. Prosecutor v Desi Bouterse, Decision of the Netherlands Supreme Court, 18 Sept 2001. See also the Peruvian Genocide Case in Spain Decision, Tribunal Supremo of Spain, judgment no 712/2003, 20 May 2003. In this case, the Spanish courts did not claim to have jurisdiction over two ex-presidents of Peru charged with genocide, terrorism, torture and illegal detention allegedly committed in Peru, because they claimed that Peru was in the process of initiating criminal investigations in this case. The Court did, however, state that the Spanish courts should intervene on the basis of universal jurisdiction if the Peruvian courts failed to take effective steps to prosecute. In order to do this the court would have to rely on the passive personality principle. See American Society of International Law, International Law in Brief (2003)Google Scholar

47 See Bevers, Hans, Roording, Jaap and Swaak-Goldman, Olivia ‘The Dutch International Crimes Act (Bill)’ in Neuner, M (ed) National Legislation Incorporating International Crimes (C Berliner Wissenschafts-Verlag GmbH Berlin 2003) 179.Google Scholar

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50 Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (10 Dec 1984), 1465 UNTS 85.Google Scholar

51 R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 3) [2000] 1AC 147, House of Lords.Google Scholar

52 On 26 Aug 2004 the Supreme Court of Chile upheld the decision of the Santiago Court of Appeals holding that General Pinochet was not immune from prosecution for crimes against humanity committed 30 years ago. See American Society of International Law, International Law in Brief (31 Aug 2004).Google Scholar

53 Princeton Principles on Universal Jurisdiction (Program in Law and Public Affairs, 2001). Similar, albeit less authoritative, initiatives include the ‘Brussels Principles against Impunity and for International Justice’ (11–13 Mar 2003) and the ‘Cairo-Arusha Principles on Universal Jurisdiction in Respect of Gross Human Rights Offences: An African Perspective’ (20 Oct 2002).Google Scholar

54 Princeton Principles, above n 55 at principle 2.Google Scholar

55 ibid at principle 5.

56 ibid at 50–1.

57 Wet betreffend de bestraffing van ernstige schendingen van het internationaal humanitair recht (16 June 1993). The most recent amendments were adopted on 5 Aug 2003. Certain of these amendments were disallowed by the Belgian Arbitragehof on 23 Mar 2005. It nevertheless allowed these provisions to remain in force until 31 Mar 2006 to allow for the necessary changes in the law.Google Scholar

58 Pinochet, above n 53 at 106.Google Scholar

59 ibid at opinion of Lord Millet

60 ICJ, Case Concerning the Arrest Warrant of 11 Apr 2000 (Democratic Republic of Congo v Belgium), 14 Feb 2002.Google Scholar

61 ibid at para 61.

62 For two recent decisions discussing immunity see the Tachiona and Zemin cases, above n 45. A number of other national courts have also dismissed charges against sitting Heads of State based on immunity. For example, Belgium dismissed a case against Israeli Prime Minister, Ariel Sharon, in 2003; France dismissed a case against Libyan leader, Col Ghaddaffi in 2001; Spain dismissed a case against Cuban leader, Fidel Castro, in 1999; and the UK refused a private application for an extradition warrant against Zimbabwean President Robert Mugabe in 2004. See Sarah Andrews, ASIL Insight: U.S. Court Rule on Absolute Immunity and Inviolability of Foreign Heads of State: The Cases Against Robert Mugabe and Jiang Zemin (Nov 2004) n 20.Google Scholar

63 ICJ, Certain Criminal Proceedings in France (Republic of Congo v France), application of 9 Dec 2002. For the latest information on this case see Court Order of 17 June 2004, Doc No 129. Press Release 2005/1; 3 Jan 2005.Google Scholar

64 For a discussion of immunities before the ICC see Akande, Dapo, International Law Immunities and the International Criminal Court (2004) 98 AJIL 407.CrossRefGoogle Scholar

65 See SCSL, Prosecutor v Charles Ghankay Taylor, Decision on Immunity from Jurisdiction, above n 39.Google Scholar

66 ibid.